Why it matters

The California Supreme Court has requested assistance from the state's Division of Labor Standards Enforcement (DLSE) in a high-profile dispute over "suitable seating." The state's highest court is currently considering three certified questions from the Ninth Circuit Court of Appeals in a pair of consolidated cases brought by a CVS cashier and a teller at JPMorgan Chase Bank. The putative class actions allege that the employers violated Wage Orders 4-2001 and 7-2001 providing that "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of the seats." A federal district court sided with the employers. When the plaintiffs appealed to the Ninth Circuit, the federal appellate panel punted the case to the California Supreme Court. Now the court has asked for help, requesting that the DLSE submit an amicus brief on how it would respond to the questions from the Ninth Circuit. The court requested an answer by August 21.

Detailed discussion

The dispute began when Nyketa Kilby, a cashier at CVS Pharmacy, and Kemah Henderson, a teller at JPMorgan Chase Bank, brought putative class actions against their employers. Both women alleged that the defendants violated California Wage Orders by failing to provide employees with seats.

Wage Order 4-2001 covers professional, technical, clerical, mechanical, and similar occupations, while Wage Order 7-2001 applies to the mercantile industry. Both orders provide that "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."

Kilby and Henderson argued that the orders are applicable to specific tasks performed by employees. So if a bank teller can accept deposits and cash checks while seated or a CVS cashier can operate a register while sitting down, then the bank and retailer must provide suitable seats, the plaintiffs told the court.

The employers advocated for a look at the bigger picture. Under this "holistic approach," courts should consider the entire range of job functions the employee is required to perform—not discrete tasks. Other considerations like the layout of the workplace and the business judgment of the employer should also be taken into account, the defendants contended.

Both federal district courts adopted the holistic approach and granted summary judgment to CVS and JPMorgan Chase. The employees appealed.

But the Ninth Circuit Court of Appeals was stumped. The wage orders do not define "nature of the work," "reasonably permits," or "suitable seats," the panel said, and while the different approaches advocated by the parties would produce drastically different results, "the text of the regulation precludes neither." Uncertain about what to do, the federal appellate panel certified three questions to the California Supreme Court.

Last March, the state's highest court accepted the case. Since then, the court has received an ever-growing pile of amicus briefs from interested parties ranging from the U.S. Chamber of Commerce to the California Employment Lawyers Association to Walmart.

Interested in the perspective of the Division of Labor Standards Enforcement (DLSE), the court recently invited the agency to file a brief expressing its views on the certified questions:

"1. Does the phrase 'nature of the work' refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe 'nature of the work' holistically and evaluate the entire range of an employee's duties?

a. If the courts should construe 'nature of the work' holistically, should the courts consider the entire range of an employee's duties if more than half of an employee's time is spent performing tasks that reasonably allow the use of a seat?

2. When determining whether the nature of the work 'reasonably permits' the use of a seat, should courts consider any or all of the following: the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?

3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute 'suitable seats' to show the employer has violated [the wage orders]?"

The California Supreme Court requested that the DLSE's brief be filed and served before August 21, 2015, allowing the parties to file answer briefs within 20 days.

To read the California Supreme Court's invitation to the DLSE in Kilby v. CVS Pharmacy, click here.