Store cashiers spend a lot of time on their feet while operating cash registers. Bank tellers also stand for long periods, cashing checks and handling other transactions. Are employers required to provide these workers with seats?

As of now, the answer is unclear. For that reason, the 9th U.S. Circuit Court of Appeals is seeking clarification from the California Supreme Court. The federal appeals court is trying to determine employers’ precise obligations in these types of circumstances.

While awaiting this guidance, California employers have been assessing their own situations to determine whether providing seats is feasible.

Seating Cases Prompt Court to Seek Clarification

In an opinion filed Dec. 31, 2013, the appeals court certified three questions relating to the interpretation of two laws. The questions focus on Section 14(A) of California wage orders 4-2001 and 7-2001. That section requires employers to provide workers with “suitable seats” when “the nature of the work reasonably permits the use of seats.”

Wage order 4-2001 applies to professional, technical, clerical, mechanical and similar occupations, and 7-2001 covers mercantile industries.

The 9th Circuit’s questions were prompted by two cases in which workers alleged that their former employers violated state law by failing to give them seats.

In Kilby v. CVS Pharmacy, Inc., a former CVS cashier brought a proposed class action in 2009, stating that the company should have provided seats to cashiers while they operated cash registers. Nykeya Kilby claimed that its failure to do so violated Section 14(A) of wage order 7-2001.

CVS contends that it’s important for cashiers to stand because it promotes good customer service. The company argued that courts should adopt a “holistic” interpretation—considering the entire range of tasks that employees perform, along with job descriptions, the workplace layout and the employer’s business judgment. Under this interpretation, an employer would need to comply with Section 14(A) only if all of these factors “reasonably permit the use of a seat,” according to the opinion.

In contrast, Kilby asserted that the court should consider only the employees’ discrete tasks. Using this interpretation, CVS would need to provide a seat if the worker was performing a task that “can objectively be performed whiled seated,” the opinion notes. This narrow interpretation wouldn’t take into account the worker’s other duties or the employer’s business judgment.

Kilby spent about 90 percent of the workday operating a cash register and 10 percent on duties like gathering carts and restocking.

Because the district court opted to use the holistic interpretation favored by the employer, it denied class certification. The court also granted summary judgment to the company, noting that many of Kilby’s duties required her to stand and that her employer had explained this to her.

In the other case, Henderson v. JPMorgan Chase Bank, four former tellers alleged the bank violated Section 14(A) of wage order 4-2001. They brought a proposed class action, challenging the bank’s policy of not providing seats for tellers. As in the CVS case, the plaintiffs wanted the focus to be on discrete tasks, while the defendant urged a holistic approach.

Although JPMorgan tellers spend the majority of their time at the teller station, they may have other responsibilities, such as working at the drive-through window or checking the ATM machines. In addition, the banks’ physical layouts may vary.

In the JPMorgan case, the district court also adopted a holistic interpretation and denied class certification. Citing Kilby v. CVS Pharmacy, Inc. in its interpretation of the law, the court stated that the nature of the tellers’ work could change based on the tasks they were doing, the bank at which they were employed and the shift they were on.

Questions Sent to California High Court

Nevertheless, there’s still confusion. As the 9th Circuit stated in its opinion: “Even though the holistic approach and the individual task approach would produce drastically different results, the text of the regulation precludes neither.” The appeals court noted that there is no controlling California precedent on the interpretation of Section 14.

Faced with that uncertainty, the 9th Circuit certified the following questions to the state Supreme Court:

1) “Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties?”

As part of the first question, the court also asked: “If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?”

2) “When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?”

3) “If an employer has not provided any seat, does a plaintiff need to prove what could constitute ‘suitable seats’ to show the employer has violated Section 14(A)?”

Companies Evaluate Their Situations

The answers will have huge implications for California employers. Over the past few years, plaintiffs have filed dozens of these seating cases, noted Evelyn Wang, a Los Angeles attorney at Davis Wright Tremaine. Many of these class actions have been brought against large retail chains and financial institutions, she added.

Using a conservative estimate, the potential penalties in such cases could amount to tens of millions of dollars, the 9th Circuit opinion states.

As they wait for this guidance, companies have been determining what makes sense for their own workplaces. Businesses have reached different conclusions.

On this issue, employers generally fall into one of two categories, said San Francisco attorney Laura Maechtlen of Seyfarth Shaw. Some employers have determined that the nature of these jobs doesn’t permit the use of seats, so they’ve decided not to provide them. Others have decided that the nature of the work does allow for seats, and, therefore, they’ve opted to offer them.

If a company has determined that a particular job isn’t suitable for the use of seats, then all of its practices and policies should align with that position,Maechtlen said. Thus, all job descriptions, onboarding documents and performance reviews should support the company’s argument. These would be important resources if a legal claim arose.

On the other hand, if a business has decided that seats are permissible, then it should consult with legal counsel before making any major changes, according to Maechtlen.

Meanwhile, Wang recommends that employers examine the feasibility of providing seats for certain workers—e.g., those who are relatively stationary during all or part of the workday. Companies should consider providing them with a chair or stool in their workstation or someplace nearby.

Irvine attorney John Skousen of Fisher & Phillips advises companies to offer seats in some clearly defined situations.

“In circumstances where there’s an appreciable amount of dead time, and where the job doesn’t require standing, and the employee isn’t regularly assigned other duties, employers would be wise to provide them with suitable seating that complies with the safety requirements of the workplace,” he said.

However, this won’t apply to many workers, according to Skousen.

“There are relatively few jobs where the employer doesn’t assign other duties when there’s a lack of customers,” he noted.

In evaluating whether the nature of a job requires that the worker stand, employers may conclude that a seat raises safety concerns, Skousen said. He cited cashiers, who typically have many duties, which include bagging groceries. An employer might consider a seat a potential hazard because the cashier could trip over it, he explained.

The attorneys emphasized that good job descriptions are vital because employees need a clear sense of their duties and the company’s expectations.

They also highlight the need to be especially careful on another matter: the rights of disabled workers. If an employee who requests a seat has a medical condition that limits his or her ability to stand for long periods, that request triggers a separate set of requirements, Wang said. At that point, it raises the duty to engage in the “good faith interactive process” under the state’s disability regulations. Through this process, the employer evaluates whether a reasonable accommodation is possible.

Another key step is training managers on the issue of suitable seating, Maechtlen added.

The lawyers concluded that this is the best advice they can provide for now, given the lack of clarity. For a definitive answer to all of these questions, they’re waiting for the reply of the California high court.

“On this issue, all eyes are on the Supreme Court at this point,” Maechtlen said.