Green v. Bank of America, No. 11-56365 (February 11, 2013) unpublished: The Ninth Circuit Court of Appeals recently held that employees need not make a request for “suitable seating” before filing a lawsuit against their employers under California’s Private Attorney General Act of 2004 (PAGA) for failing to provide such seating.

Section 14 of the Industrial Welfare Commission Wage Order 7-2001 for the mercantile industry states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Although this wage order has rarely been used, since 2009 there has been a surge of “suitable seating” cases against companies, including banks, pharmacies, retailers, and grocery stores. Because “suitable seating” is a compliance issue, the lawsuits seek civil penalties and do not have to prove—or even claim—damages or injury.

In Green, the Ninth Circuit reversed a lower court decision that dismissed the case on the basis that the employee never requested a seat. The court noted that the wage order does not require that employees “request seating before it is offered.”

So far, only threshold issues have been decided, e.g., whether the claim can be brought under the state PAGA, and now, whether the employee has to first request the seating. It is now up to the courts to determine what type of work reasonably permits seating.

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