Hunton Employment & Labor Perspectives

Last Monday, the California Supreme Court in Kilby v. CVS Pharmacy, Inc. clarified the meaning of California’s requirement that all working employees be provided with suitable seating “when the nature of the work reasonably permits the use of seats.” Answering three questions raised by the Ninth Circuit, the Court ruled that:

(1) The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for;

(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics; and

(3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

Background

This long awaited guidance stems from two cases currently before the Ninth Circuit Court of Appeals. In the underlying cases, plaintiff employees alleged that they were not provided a seat to handle their daily work tasks. The employees filed class actions alleging violation of California’s Wage Orders 4-2001 and 7-2001. Section 14(A) of these Wage Orders provides that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Section 14(B) of these Wage Orders provides that “[w]hen 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.” In Kilby, the District Court granted summary judgment in favor of the employer because there was “no dispute that many of the duties performed by Clerk/Cashiers at CVS require the employee to stand while performing them….” In the other underlying case, the District Court denied class certification based on the varied job tasks performed by members of the putative class of bank tellers. Plaintiffs in both cases appealed to the Ninth Circuit. In its review of these cases, the Ninth Circuit determined that it needed direction from the California Supreme Court.

“Nature of the Work”

The California Supreme Court framed the first issue as follows: “Does the phrase ‘nature of the work’ refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given shift?”

The Court ruled that “courts must examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.” This examination should consider whether a seat would interfere with performance of standing tasks or the quality and effectiveness of overall job performance.

Interpreting section 14(A) together with section 14(B) of the Wage Orders, the Court explained, “if the employee’s actual tasks at a discrete location make seated work feasible, he is entitled to a seat under section 14(A) while working there. However, if the job duties take him to a different location where he must perform standing tasks, he would be entitled to a seat under 14(B) during ‘lulls in operation.’”

“Reasonably Permits”

The Court next asked, “When determining whether the nature of the work ‘reasonably permits’ use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of the specific employee relevant factors?”

The Court agreed with the defendants that “[p]roviding a certain level of customer service is an objective job duty that an employer may reasonably expect.” Thus, in determining whether the nature of the work reasonably permits use of a seat, “[a]n employee’s duty to provide a certain level of customer service should be assessed, along with other relevant tasks and obligations.” The standard is an objective one, however, and an employer cannot arbitrarily define a task as a “standing” task based only on the employer’s mere preference that the task be performed while standing. The Court also agreed with the defendants that the physical layout of a workplace is a relevant factor in the analysis, because the layout may inform the expectations of both the employer and the employee with respect to the employee’s job duties. The Court found that the employee’s physical characteristics are irrelevant, however, as the Wage Orders “require a seat when the nature of the work reasonably permits it, not when the nature of the worker does.”

Burden to Show Suitable Seating Is Available

The last question posed by the Court was, “If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?”

The Court agreed with the plaintiff employees, concluding that “if the nature of the work reasonably permits seated work, section 14(A) unambiguously states employees ‘shall be provided with suitable seats.’” Thus, “[a]n employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists.”

In recent years, California employers have been inundated with lawsuits alleging violations of the suitable seating requirements, and the California Supreme Court’s decision in Kilby provides important guidance for complying with these requirements. In light of the Court’s decision, California employers, and particularly California retailers, should review their seating policies to ensure compliance with the suitable seating requirements.