California Supreme Court Tells Employers to Sit a Spell While Courts Review Individual Factors for Suitable Seating
“Shut the door. Have a seat.” The phrase immediately conjures emotions from the recipient. Most likely, life-changing (typically bad) news is about to be imparted. For Mad Men fans, it harkens to the third-season finale when the partners decide to split and start their own firm (and when Betty finally tells Don to take a hike). For the employees of California forced to stand to perform their jobs, however, the California Supreme Court has given “have a seat” a refreshing new meaning.
Two separate lawsuits comprise the pillars of the decision handed down in Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (Cal. 2016). Nykeya Kilby worked as a clerk and cashier for CVS Pharmacy, Inc. During her shift, she moved around the store stocking shelves, assisting customers, gathering carts, arranging display cases, cleaning, and removing trash. Despite these tasks, however, she spent most of her time running the register. She was required to stand to do so.
Kemah Henderson worked as a teller for JPMorgan Chase Bank. Like Kilby, she stood behind the counter to perform the majority of her job, but she occasionally escorted customers to safety deposit boxes, worked at the drive-up window, cashed checks, and handled withdrawals.
Both Kilby and Henderson filed lawsuits in federal district court in California alleging violations of California’s “suitable seating” requirement. Specifically, California wage orders require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001)). The district court denied class certification and granted summary judgment in favor of CVS on the grounds that a court should consider an employer’s “business judgment” when determining if a chair is necessary. The district court in Henderson similarly denied class certification.
The Ninth Circuit declined to opine on the appeals, and instead turned the question of when a chair is and is not permitted over to the California Supreme Court. Over the course of 25 pages, the California Supreme Court interpreted the wage orders and regulations and proudly stood up to declare, “It depends.” First, the court held that the “nature of the work” refers to the tasks at a given location for which a right to a suitable seat is claimed. In other words, courts cannot use a “single task” as a means of determining whether a chair is permitted, nor can courts use an “all or nothing” interpretation. Courts must look to the “actual tasks performed, or reasonably expected to be performed” rather than abstract characterizations, job titles, or descriptions that may not accurately reflect the day-to-day operations.
Whether the nature of the work “reasonably permits” sitting is determined objectively based on the “totality of the circumstances.” This includes the layout of the workspace, the feasibility of providing seats, whether the seats would interfere with other standing tasks, how frequently the individual would transition from sitting to standing, and whether the quality of work would suffer. An employer’s business judgment can also be taken into account with this determination, but it is not the only factor. Indeed, the court noted that an employer should not unreasonably design a workspace in order to deny a seat to an individual.
What It Means: Unlike a Catholic mass, it was never quite clear “when” it was suitable to have a seat at some jobs. As a result of Kilby, courts must perform an inquiry on each particular location where an employee works, instead of an analysis of the employee’s job tasks. While such an individualized inquiry would seem to preclude class action treatment, whether courts will in fact reach that conclusion remains to be seen.