Half Hour to Eat and a Suitable Seat

First Quarter 2012Newsletters California Update

Is the half-hour meal period mandatory or not? California employers have been waiting for the answer to this question for months as the state Supreme Court considers the Brinker case. The matter has been briefed, argued, and briefed again. But as we go to print, there is still no decision. The case will decide whether employers can be subject to huge penalties if employees fail to take their meal breaks. The Supreme Court is also set to consider whether employers can recover their attorney’s fees as a prevailing party in these cases, after an appellate court ruled that such fees were authorized under Labor Code section 218.5. That case is Kirby v. Immoos Fire Protection, case number S185827 in the California Supreme Court.

In the meantime, while employers are on the edge of their seats awaiting the Brinker decision, employees are demanding seats of their own. Plaintiffs' class action lawyers have discovered an obscure and long-dormant section of the California Wage Orders that says:

"All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats....When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area, and employees shall be permitted to use such seats when it does not interfere with the performance of their duties."

This language is a virtual quagmire of ambiguity that will likely take years to sort out. What kind of seat is "suitable"? What kind of work "reasonably permits" seats? What number of seats is "adequate"? Does the work really "require" standing? What is "reasonable proximity"? When does sitting "interfere" with the employee's duties? Does the employee have some sort of right to sit on the job unless the employer can prove otherwise? Dozens of courts are now wrestling with these questions as the plaintiffs' lawyers have fanned out and filed a barrage suits against retailers and restaurants all over the state using the Private Attorney General Act (PAGA) as the procedural vehicle. Two rulings from the Courts of Appeal last year have allowed these cases to continue.

Employers’ defenses to these cases include arguments that PAGA is unconstitutional and that the “suitable seating” requirement is not properly subject to class action treatment. In the first dispositive ruling in these cases, a federal judge recently dismissed a case against a major bank, holding that employers are only obligated to provide seats to employees who actually request them. That decision has been appealed, and many more decisions are yet to come. We're a long way from knowing what “suitable seating” means.

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