The countdown begins to receiving some clarity on the suitable seating rule from the California Supreme Court. On January 5, 2016, the Court heard oral argument in the consolidated matters of Kilby v. CVS Pharmacy, Inc. and Henderson v. JP Morgan Chase Bank. These putative class actions claim that the employers violated Section 14 of Wage Orders 4-2001 and 7-2001 (the “suitable seating” rule), 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.” In the present proceedings, the Court is responding to a question certified by the Ninth Circuit for guidance on the meaning of the rule.

CVS and JPMorgan both argued for a “holistic approach” in which the factfinder should assess the nature of employees’ work by looking at the whole range of tasks they perform, the workplace’s layout and other factors, including the employer’s business judgment in requiring employees to stand to deliver the expected level of customer service.

In contrast, the employees argued for a task-oriented approach, and contended that if the tasks they are required to undertake can be done sitting down, then they should be provided seats. They also argued that an employer’s business judgment should never be taken into account. According to the employees, the suitable seating rule conveys a minimum labor standard, like meal and rest breaks, that cannot be compromised based on perceived customer preferences and expectations for a standing employee.

Questions from the justices  indicated that some were not wholly sold on either side’s argument. Although statements by Justice Goodwin Liu suggested that CVS and JPMorgan’s proposed approach was not unreasonable, others asked whether the holistic approach would contemplate any circumstance where an employee would be entitled to sit. Overall, the Court appeared concerned that if a holistic approach were adopted in applying the suitable seating rule, then there would never be a situation where an employee would be entitled to sit, because an employer’s business judgment would always weigh in favor of making the employee stand.

The Court also took issue with the employees’ contention that an employer’s business judgment should not be considered at all. Justice Liu questioned whether the use of the term “reasonably” necessarily requires consideration of an employer’s business judgment. A few comments indicate that some justices think employers are in the best position to determine what works for their business and whether the nature of the work permits the use of seats.

The Court has 90 days to issue its decision. Based on the questioning, it is difficult to say whether the decision will be a slam dunk win for either side. Will the Court adopt the holistic approach advocated by CVS and JPMorgan, write off the business judgment of an employer, as advocated by the employees, or come up with a different interpretation altogether?  Stay tuned to this space for further analysis when the decision comes down.