Seyfarth Synopsis: Seats must be provided for each location where the work reasonably permits.

It started like a bad joke. A cashier and a bank teller walk into a bar—actually, a federal court served by the Bar—and sue CVS Pharmacy and JPMorgan Chase Bank, claiming they were entitled to sit while working, under the California wage orders. They lose and appeal to the Ninth Circuit.

The Ninth Circuit looked here and there but could find no California case interpreting the seating provisions in the wage orders. No precedent defined what the wage orders mean by requiring employers to provide“suitable seating” “when the nature of the work reasonably permits.” The Ninth Circuit asked the California Supreme Court to opine. On April 4, 2016, the California high court finally did.

“Though This Be Madness, Yet There Is Method In’t.”

The Supreme Court held that the “nature of the work” requires looking at subsets of all the tasks and duties of employees by location. Courts must look at all the actual tasks performed, not simply job descriptions or expectations. The Supreme Court rejected the employers’ approach of looking at the work as a whole. The Supreme Court also rejected the employees’ approach of looking at each “single task.”

In examining the term “reasonably permits,” the Supreme Court determined that a totality of circumstances standard applies. Courts must examine

  • the tasks performed,
  • whether the tasks can be performed while seated,
  • whether seats would interfere with other tasks,
  • whether getting up and down could interfere with the work, and
  • whether seated work affects the quality and effectiveness of overall job performance.

The employer’s business judgment—including expectations regarding customer service—is relevant but not determinative. The business judgment must involve something beyond an employer’s “mere preference.” Also relevant is the physical layout of the workplace.

“This Above All: To Thine Own Self Be True.”

The Supreme Court warned employers that “suitable seating” does not mean employers can play fast and loose with the truth and circumvent the suitable seating requirement by creating a workplace environment with the purpose to deny employees a seat.

And, employers who deny seating now must prove the nature of the work did not reasonably permit the use of seating. So employers should be cautious to consider real barriers to seating in the workplace as potential options are deliberated.

“That It Should Come To This!”

Employers can no longer get away with saying, “Anon, anon.” The time is now for employers to review their seating practices based on tasks actually performed by employees, and to look at tasks performed at different “particular locations.” “Business judgment,” though a consideration, is but one factor among several, and the employer bears the burden of proving it did not have to provide suitable seating.

Employers must ask themselves, “Are our employees provided seats?” If not, it may be time to reevaluate seating needs of employees before their company becomes the beginning of the next blog, because no company can take class action lawsuits sitting down.

The cases are: Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA.