On April 4, 2016, the California Supreme Court clarified the meaning of the state’s suitable seating requirements in a decision that could affect employers across industries.  The focus of the Court’s inquiry in Kilby v. CVS Pharmacy, Inc. was the proper construction of a nearly century-old wage order requiring that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The issue reached the state’s high court after CVS cashiers and Chase Bank tellers appealed the denial of class certification of their respective claims arising out of alleged violations of the suitable seating wage order.  Noting the lack of California precedent and the potential impact of the decision, the Ninth Circuit asked the California Supreme Court to supply the proper interpretation of the wage order.

The Court ultimately agreed to answer three questions: (1) whether the words “nature of the work” refer to an employee’s individualized tasks or the entire range of potential duties during a given work period; (2) whether an employer’s business judgment, the physical layout of the workspace, and an employee’s physical characteristics are relevant in determining whether the work “reasonably permits” the use of seats; and (3) who has the burden to prove a violation when seating is not provided.

The Court explained that the meaning of “nature of the work” and “reasonably permits the use of seats,” although distinct questions, were necessarily intertwined by the wage order’s underlying policy to provide a minimum level of protection for workers.  Accordingly, the Court explained that the proper approach is to “examine subsets of an employee’s total tasks and duties by location,” with a focus on actual or expected tasks rather than abstract job titles, and “consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.”  The Court found that the “reasonably permits” element should be evaluated with an objective “totality of the circumstances” approach that takes into account the employer’s business judgment and the physical layout of the workplace, but not an employee’s individual physical characteristics.  In light of the objective approach and the wage order’s use of the affirmative “shall,” the Court ultimately concluded that it is an employer’s burden to prove infeasibility when it claims no suitable seating exists.

The cases now head back to the Ninth Circuit for further proceedings.

A copy of the California Supreme Court’s decision may be found here.

Keesal, Young & Logan Employment Group

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