Kilby v. CVS Pharmacy: Cal. Supreme Court Issues Suitable Seating Opinion

In Kilby v. CVS Pharmacy, Inc. (Cal. 4/4/16), the California Supreme Court addressed a number of questions that arise under the "suitable seating" section of the Wage Orders, which provides: 

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.  

(B) 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. 

Wage Orders 14 (agricultural occupations) and 16 (certain on-site occupations in the construction, drilling, logging, and mining industries) include a variant of subsection (A) above. Wage Order 17 (miscellaneous employees) does not include a suitable seating requirement. 

The opinion arises from two related appeals pending in the Ninth Circuit: Kilby v. CVS, in which the named plaintiff's duties included operating a cash register, straightening and stocking shelves, organizing products in front of and behind the sales counter, cleaning the register, vacuuming, gathering shopping baskets, and removing trash; and Henderson v. JPMorgan Chase Bank, in which the named plaintiff's duties included teller duties such as accepting deposits, cashing checks, handling withdrawals and other duties, such as escorting customers to safety deposit boxes, working at the drive-up teller window, and making sure that automatic teller machines were working properly. 

In an opinion by Justice Corrigan, a unanimous Court held as follows:

(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. 

The Court rejected the defendants' argument that seating is required only where an employee's "sitting" duties outweigh her "standing" duties, such that the position would be classified as a "sitting" position. Such a test could deny a seat to an employee who spends a "substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing." It also could lead to different results for employees performing similar tasks because of other duties that they perform. 

The Court also rejected the plaintiffs' argument that seating is required any time that a single task, examined in isolation, "may reasonably be performed seated." This standard would ignore the reasonableness standard and the flexibility it is intended to provide to employers. 

Instead, courts must look at the tasks actually performed or reasonably expected to be performed at each location and determine whether it is feasible for an employee to perform those tasks while seated. 

The requirements of sections 14(A) and 14(B) are not mutually exclusive. Although they may not apply at the same time, they may apply at various times during a single shift.

(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. 

The Court rejected any bright-line rule, holding instead that courts should examine "all relevant factors," including "whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance." The Court reiterated that the analysis must focus on the characteristics of each work location, rather than focusing on all of the tasks performed in a shift by a given employee. 

An employer's business judgment "largely determines" the employee's duties and tasks. "However, 'business judgment' in this sense does not encompass an employer's mere preference that particular tasks be performed while standing. The standard is an objective one." 

The physical layout of the workspace is a relevant factor in the totality of the circumstances inquiry. However, "an employer may not unreasonably design a workspace to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks." Reasonableness "remains the ultimate touchstone." 

The Court rejected the argument that the entitlement to a seat depends on the physical characteristics of each employee. The Wage Order focuses on the nature of the work, not the nature of the worker.

(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. 

The Court rejected the argument that "even when 'the plaintiff can establish that the "nature" of her work would reasonably permit the use of a seat, she must still prove that a suitable seat exists but was not provided. The "suitable seat" requirement is an independent element of the regulation.'" If the nature of the work reasonably permits the use of seats, the employer "bears the burden of showing compliance is infeasible because no suitable seating exists." 

The opinion is available here.