In April 2016, the California Supreme Court in Kilby v. CVS Pharmacy, Inc., No. S215614, issued an opinion interpreting for the first time the California Wage Orders’ requirement that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” In general, in terms of assessing this requirement, the Court ruled lower courts should review employee tasks performed at a specific work location, rather than all of the tasks the employee performs over the course of a day, and consider whether based on the totality of the circumstances it is feasible and practicable for employees to perform those location-specific tasks while seated.
Kilby arose from two appeals pending before the U.S. Court of Appeals for the Ninth Circuit. Kilby was a clerk-cashier for CVS. Clerk-cashiers for CVS were expected to perform job duties such as cashiering, organizing and stocking products, cleaning and maintaining the store, and providing a high level of customer service. CVS did not provide seats to clerk-cashiers when performing any of these tasks. Kilby filed a class action alleging a violation of section 14 of Wage Order No. 7-2001 (applicable to the mercantile industry) and seeking recovery of civil penalties under the California Labor Code Private Attorneys General Act (“PAGA”), Cal. Lab. Code § 2698 et seq. The district court granted summary judgment to CVS. Kilby appealed
At the appellate level, the Ninth Circuit in Kilby certified three unresolved and determinative questions of California law requiring decision by the California Supreme Court:
- 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 day or shift?
- 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 a specific employee relevant factors?
- 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 Supreme Court Decision
The California Supreme Court’s opinion began by examining the history and purpose of the Wage Orders’ seating requirement. The court explained the seating requirement is intended to establish a “minimum level of protection” for workers, and the history of section 14 “reflects a determination by the [Industrial Welfare Commission (“IWC”)] that ‘humane consideration for the welfare of employees requires that they be allowed to sit at their work or between operations when it is feasible for them to do so.’”
Interpreting “the Nature of the Work”
First, the court considered (but rejected) the employers’ argument for a holistic view of the employee’s entire job that would weigh tasks which permit seating against tasks that required standing. The court also rejected the notion that, under the defendants’ approach, employers could have “different seating requirements for employees with different duties and job descriptions while they perform the same work.”
The Court continued:
“The inquiry does not turn on the individual assignments given to each employee, but on consideration of the overall job duties performed at the particular location by any employee while working there, and whether those tasks reasonably permit seated work.”
However, the Court clarified it was not simply adopting the plaintiffs’ view the “nature of the work” refers to each individual task an employee performs. Instead, the analysis must consider more than whether a single task could be performed while seated, including:
- “If the duration and frequency of the seated task is negligible”;
- “Whether being seated would unduly interfere with other standing tasks or the quality and effectiveness of overall job performance”; and
- How to balance “an employee’s need for a seat with an employer’s considerations of practicability and feasibility.”
The Court found the proper approach for determining the “nature of the work” is to “examine subsets of an employee’s total tasks and duties by location, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.” In adopting this method for analysis, the Court attempted a compromise between the defendants’ and the plaintiffs’ preferred approaches. While the approach was not “holistic” and would not preclude an employee from receiving a seat for a portion of work if some duties required standing, it would allow for consideration of the relationship between standing and sitting tasks, the frequency and duration of those tasks with respect to each other, and whether the frequency of transition between sitting and standing would unreasonably interfere with the quality and effectiveness of overall job performance.
In its decision, the Court also noted the analysis should take into account the job as generally performed, not based on differences between employees. This is because section 14 refers to the “nature of the work,” not the “nature of the worker.” As a side note, however, the Court differentiated this section 14 determination from a determination of whether a particular employee with disabilities would be entitled to a seat as an accommodation.
Evaluating Whether the Nature of the Work “Reasonably Permits” Seats
A “qualitative assessment” is required based on the “totality of the circumstances.” The Supreme Court instructed courts should consider whether the tasks can be performed while seated or if they require standing, balanced against whether providing a seat is feasible and practical in light of the particular circumstances. To assist in this determination, several factors should be considered:
- “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”; and
- “Whether seated work would impact the quality and effectiveness of overall job performance.”
The Court held the plain language of section 14 requires a seat when the nature of the work reasonably permits, and does not suggest any burden on the employee to show that a particular seat is “suitable.” This places the burden of proof onto the employer seeking to be excused from the requirement to show compliance is infeasible because no suitable seating exists.
The Court threw employers a bone by also emphasizing this analysis should also take into account an employer’s business judgment as to whether the nature of the work requires standing, as well as the physical layout of the workspace. That being said, the Court clarified employers may not “unreasonably design a workspace to further a preference for standing.” Courts may consider evidence that “seats are used to perform similar tasks under other similar workspace conditions,” as well as “whether the physical layout may reasonably be changed to accommodate a seat.”
Impact of Kilby
The California Supreme Court’s decision in Kilby in many ways can be viewed as a compromise between the employer’s and employees’ conflicting desires. Employers won the following arguments:
- In considering the nature of the work, courts should consider all of the job duties performed at a particular work station, and not just one or more particular tasks, as the plaintiffs sought;
- An employer’s legitimate business judgment the job needs to be performed while standing should be given due weight; and
- If the physical configuration of the workplace does not permit seats, that also must be taken into account, at least where that configuration serves legitimate business interests.
Employees won a couple of important victories as well:
- The job as a whole, and not just a subset of job duties, must be considered in the suitable-seating analysis. This may mean employees who spend a substantial part of the day on job duties that require standing still may be entitled to a seat if other job duties performed at a particular work station reasonably could be performed while sitting;
- The right to seating must be decided based on an analysis of the job as generally performed, and not the physical differences between employees; and
- In order to absolve an employer of liability, it is the employers’ burden of proving, while a job theoretically could be performed while sitting, there is not available any type of seating that would be suitable.
It is expected the decision in Kilby will encourage new lawsuits regarding an employer’s obligation to provide seating for employees on the job. There remains ambiguity about how this decision will be applied on a case by case basis, or even how the decision will be applied in Kilby when the case goes back to the Ninth Circuit. In the meantime, employers will be encouraged to reevaluate what job duties are being performed while standing, and whether the same job duties could be performed seated, given the various factors set forth by the California Supreme Court.
ABOUT THE AUTHOR: Nicole Hermanson is a graduate of Pepperdine University School of Law. She focuses on products liability and business litigation. Contact her at NHermanson@tysonmendes.com.