California Supreme Court Tells Workers To Take A Seat

Do your California employees perform tasks that could reasonably be performed while seated, given the specific location of where the tasks are done? If so, they may be entitled to a seat under California law – according to the California Supreme Court in a recent, highly anticipated decision. In Kilby v. CVS Pharmacy, Inc. (April 4, 2016), the Court considered, for the first time, the meaning of language in two Industrial Welfare Commission (IWC) Wage Orders requiring employers to provide all working employees with “suitable seats when the nature of the work reasonably permits the use of seats.” The Court held that determining the “nature” of an employee’s work, for purposes of this requirement, involves assessing the tasks performed by an employee at a given location (such as at a cash register), rather than considering and aggregating the entire range of an employee’s job duties. The holding is significant and will make it easier for employees to proceed with suitable-seating claims on a class-wide basis.

The case arose from two federal district court cases: Kilby v. CVS Pharmacy and Henderson v. JPMorgan Chase. Kilby involved a CVS customer service representative whose job 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 the trash. CVS did not provide the employee with a seat for any of these tasks. In Henderson, the plaintiffs worked as bank tellers at Chase bank branches, and their duties included accepting deposits, cashing checks, and handling withdrawals. They also had duties away from their teller stations, such as escorting customers to safety deposit boxes, working at the drive-up teller window, and making sure the automatic teller machines were working properly.

In both federal cases, employees brought class-action lawsuits alleging that their employers violated the Wage Order requirement to provide them with suitable seats. Based on the lack of clarity regarding when and under what circumstances California employers must providing seating, the Ninth Circuit Court of Appeals requested the California Supreme Court to decide three key issues.

First, the California Supreme Court was tasked with deciding how to determine the “nature” of an employee’s work for purposes of deciding whether that work reasonably permits seating. The defendant employers argued for a “holistic” consideration – weighing all of an employee’s sitting tasks against all of the standing tasks. If this weighing of tasks favored providing a seat, then the job would be classified as a “sitting” job. Otherwise, the job would be a “standing” job. Plaintiffs, on the other hand, argued for a task-by-task evaluation of whether any single task may feasibly be performed while seated.

The Court took a middle approach, and held that courts must examine subsets of an employee’s total tasks and duties by work location, such as those performed at a cash register or at a teller window, and must consider whether it is feasible for an employee to perform each set of location-specific tasks while seated. Thus, rather than looking at an employee’s job description or abstract characterizations of a job, what matters are actual tasks performed by the employee at each work location. If an employee’s actual tasks at a discrete location make seated work feasible, he or she would be entitled to a seat. Notably, if other job duties take the employee to a different location to perform standing tasks, the employee still would be entitled to a seat during “lulls” in operation, pursuant to a different provision of the Wage Orders.

Second, the California Supreme Court was tasked with determining what factors should be considered in evaluating whether the nature of an employee’s work “reasonably permits” the use of a seat. The Court held that, while an employer’s business judgment and the physical layout of the workplace are relevant factors, they are not dispositive and must be balanced with all factors relevant to assessing an employee’s need for a seat with an employer’s considerations of practicality and feasibility. The Court noted that an employer’s mere preference that a task be performed while standing is not a valid factor to consider, nor can an employer unreasonably design a workspace to further a preference for standing.

Lastly, the Court held that employers bear the burden of proving that no suitable seat exists, and that an employee seeking to challenge an employer for a failure to provide seats need not prove that any particular type of seat would fulfill the requirement.

Following this opinion, we expect to see an increase in the number of claims accusing employers of failing to provide suitable seating. The opinion also has another important takeaway, in that it may be easier for employees to proceed with such claims on a class-wide basis. The lower federal court in Henderson v. JPMorgan Chase denied class certification on the basis that the bank tellers had different duties that varied depending on the shift and branch locations, and depending on whether the employees were lead or regular tellers. Based on Kilby, however, such differences in employees’ overall jobs may be less relevant, given that the California Supreme Court has held that what matters in determining whether to provide suitable seats is the performance of tasks at discrete job locations.

For employers, therefore, we recommend that, in connection with legal counsel, companies evaluate the tasks performed by all employees at their various, discrete work locations. This evaluation should consider each employee’s job duties at that work location, the physical layout of the location, customer-service issues if seated or standing, the practicality of providing a seat, and the design of any such possible seat. If providing a seat would be reasonable, a seat should be provided.

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If you have any questions about these new regulations, including needing help revising your company’s policies to comply with these new regulations, or any other question about your company’s employment policies, please contact your SFSSW attorney. If you do not presently have an attorney with the firm, please contact Millicent Sanchez, Janet Swerdlow, or David Wimmer.

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