Earlier this week, in Kilby v. CVS Pharmacy, Inc., No. S215614, the California Supreme Court issued a long-awaited opinion interpreting for the first time the California Wage Orders’ requirement that "all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." The court ruled that, when assessing this requirement, courts should review employee tasks performed at a specific work location, rather than all of the tasks the employee performs over the course of a day, and consider whether, based on the totality of the circumstances—including employer business judgment and workspace layout—it is feasible and practicable for employees to perform those location-specific tasks while seated.

In many ways, the court’s opinion in Kilby gave each side something to cheer about. Employers won the argument that in considering the nature of the work, courts should consider all of the job duties performed at a particular work station, and not just one or more particular tasks, as the plaintiffs had sought. In addition, rejecting the plaintiffs’ argument otherwise, the court held that the employer’s legitimate business judgment that the job needs to be performed while standing—for example, to deliver excellent customer service—should be given due weight. The court also agreed with employers that if the physical configuration of the workplace does not permit seats, that also must be taken into account, at least where that configuration serves legitimate business interests.

On the other hand, the court rejected employers’ argument that the job as a whole, and not just a subset of job duties, must be considered in the suitable-seating analysis. That may mean that employees who spend a substantial part of the day on job duties that require standing still may be entitled to a seat if other job duties performed at a particular work station reasonably could be performed while sitting. Also, the court held that the right to seating must be decided based on an analysis of the job as generally performed, and not the physical differences between employees. Finally, the court imposed on employers the burden of proving that, even if a job theoretically could be performed while sitting, there is not available any type of seating that would be suitable, which would absolve the employer of liability.

How the court’s pronouncements will play out in the dozens of suitable-seating cases already pending remains to be seen. But Kilby likely will encourage new lawsuits. So California employers are well advised to revisit what job duties are performed by employees at a work location while standing, and whether, in light of Kilby, seats should be provided.

Background

Kilby arose from two appeals pending before the U.S. Court of Appeals for the Ninth Circuit. Kilby was a clerk-cashier for CVS whose expected duties included cashiering, organizing and stocking products, cleaning and maintaining the store, and providing a high level of customer service. CVS did not provide seats to clerk-cashiers when performing any of these tasks. Kilby filed a class action alleging a violation of section 14 of Wage Order No. 7-2001 (which is applicable to the mercantile industry) and seeking recovery of civil penalties under the California Labor Code Private Attorneys General Act ("PAGA"), Cal. Lab. Code § 2698 et seq. In granting summary judgment to CVS, the district court distinguished section 14(A), which requires seats when the nature of the work reasonably permits seats, from section 14(B) of the Wage Order, which provides:

When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

The district court in Kilby held that sections 14(A) and 14(B) were mutually exclusive, and the nature of an employee’s work either did or did not require standing. As a result, the district court reasoned, the determination whether section 14(A) or 14(B) applied required a holistic view of the work performed by CVS clerk-cashiers, including their "entire range of assigned duties." Using this approach, the district court concluded that the overall nature of a CVS clerk-cashier’s work required standing and therefore there was no violation of section 14. Kilby appealed.

In addition to Kilby, there have been more than 60 class and representative PAGA actions alleging violations of section 14 requirements filed since 2009. A couple have been tried and won (including Garvey v. Kmart Corp., which we tried with another firm), and a few have been resolved on summary judgment or settlement. But the bulk of the cases remain pending.

Certification of Questions by the Ninth Circuit

The Ninth Circuit in Kilby certified three unresolved and determinative questions of California law requiring decision by the California Supreme Court. As reframed by the Supreme Court, the questions were:

  1. Does the phrase "nature of the work" refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?
  2. When determining whether the nature of the work ‘reasonably permits’ use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
  3. If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?

Section 14(A) Requires Examination of Whether Location-Specific Tasks Reasonably Permit the Use of a Seat in Light of the Totality of the Circumstances

The California Supreme Court’s opinion, authored by Judge Corrigan, began by examining the history and purpose of the Wage Orders’ seating requirement. The court explained that the seating requirement is intended to establish a "minimum level of protection" for workers, and that the history of section 14 "reflects a determination by the [Industrial Welfare Commission ("IWC")] that ‘humane consideration for the welfare of employees requires that they be allowed to sit at their work or between operations when it is feasible for them to do so.’" Although it does not defer to California Division of Labor Standards Enforcement ("DLSE") policies for enforcing wage order requirements, the court noted that it considers DLSE opinions "with respect."

The court proceeded to review three opinion letters and a 2012 DLSE amicus curiae brief submitted in the Garvey v. Kmart Corp. case to consider how the DLSE and IWC had interpreted section 14 requirements. In each instance, the agency noted that the determination of whether seating was required would depend on the particular situation, and no blanket finding could be made absent an investigation. The court recited the DLSE’s statements that section 14 "was not intended to cover those positions where the duties require employees to be on their feet, such as salespersons in the mercantile industry," and that, with respect to salespersons, "historically and traditionally, salespersons have been expected to be in a position to greet customers, move freely throughout the store to answer questions and assist customers in their purchases." The court also reviewed the DLSE amicus curiae brief filed with the court in Kilby, which proposed that the focus of the inquiry should be on particular duties or tasks.

Interpreting "the Nature of the Work"

After reviewing the history of the wage order and the DLSE’s position on section 14 requirements, the court turned to the text of section 14. The court determined that the IWC’s intended meaning of "the nature of the work" "cannot be meaningfully [resolved] without consideration of the underlying purpose of the seating requirement."

First, the court considered but rejected the employers’ argument for a holistic view of the employee’s entire job that would weigh tasks that permit seating against tasks that required standing:

Defendants’ argument sweeps too broadly and is inconsistent with the purpose of the seating requirement. ... Defendants’ proposed consideration of all tasks included in an employee’s job description ignores the duration of those tasks, as well as where, and how often, they are performed. This all-or-nothing approach could deprive an employee of a seat because most of his job duties are classified as "standing" tasks, even though the duration, frequency, and location of the employee’s most common tasks would make seated work feasible while performing them. There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.

The court also dismissed the notion that, under the defendants’ approach, employers could have "different seating requirements for employees with different duties and job descriptions while they perform the same work":

Consider an employee who spends most of his day stocking shelves, for which he must stand, but who occasionally assists at a cash register during busy periods. Under defendants’ approach, though cash register duty may feasibly be performed while seated, this employee would not be entitled to a seat under Section 14(A) while working at the cash register. Yet, another employee who spends most of his day at the cash register would be entitled to a seat there. Nothing in the language or history of the seating requirement allows such disparate treatment of employees performing the same tasks.

The court continued:

The inquiry does not turn on the individual assignments given to each employee, but on consideration of the overall job duties performed at the particular location by any employee while working there, and whether those tasks reasonably permit seated work.

The court clarified that its focus on location-specific tasks did not mean it was adopting the plaintiffs’ view that the "nature of the work" refers to each individual task an employee performs. According to the court, the plaintiffs’ view was inconsistent with the history and purpose of section 14(A). The IWC’s inclusion of the word "‘reasonably’ before the phrase ‘permits the use of seats,’" and its historical enforcement position, made clear that "the seating requirement has never been understood as absolute or doctrinaire," and that the analysis must consider more than whether a single task could be performed while seated, including:

  • "if the duration and frequency of the seated task is negligible";
  • "whether being seated would unduly interfere with other standing tasks or the quality and effectiveness of overall job performance"; and
  • how to balance "an employee’s need for a seat with an employer’s considerations of practicability and feasibility."

The court declared that the proper approach for determining the "nature of the work" is to "examine subsets of an employee’s total tasks and duties by location, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated." The court explained that this approach was a compromise between the defendants’ and the plaintiffs’ preferred approaches. While the approach was not "holistic" and would not preclude an employee from receiving a seat for a portion of his work if some duties required standing, it would allow for consideration of "the relationship between [] standing and sitting tasks [], the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transition between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance."

The court also held that the right to seating must be decided based on an analysis of the job as generally performed, and not based on the physical differences between employees. The court said that is because section 14 refers to the "nature of the work," not the "nature of the worker." The court, however, also noted that the section 14 analysis is not the same as whether a particular employee with disabilities would be entitled to a seat as an accommodation.

Factors to Consider in Evaluating Whether the Nature of the Work "Reasonably Permits" Seats

To determine whether seats are reasonably permitted, the court explained, requires a "qualitative assessment" based on the "totality of the circumstances." "The weight given to any relevant factor will depend upon the attendant circumstances." After grouping the relevant tasks by location, courts should consider "whether the tasks can be performed while seated or [if they] require standing," balanced against whether providing a seat is feasible and practical in light of the particular circumstances. The court set out several factors to consider in determining feasibility and practicability, including:

  • "whether providing a seat would unduly interfere with other standing tasks";
  • "whether the frequency of transition from sitting to standing may interfere with the work"; and
  • "whether seated work would impact the quality and effectiveness of overall job performance."

Importantly, the court confirmed that this consideration of the totality of the circumstances should include taking into account an employer’s business judgment as to whether the nature of the work requires standing. The court explained that "an employer’s expectations define the duties of an employee," and that such duties are not limited to physical tasks. To be sure, an employer’s expectations must be objectively reasonable, as opposed to a "mere preference," but the court agreed that it is objectively reasonable for an employer to define an employee’s duties to include providing "a certain level of customer service," which may be "comprised of different tasks, e.g., assisting customers with purchases, answering questions, locating inventory, creating a welcoming environment, etc." These client service duties "should be assessed, along with other relevant tasks and obligations, in determining whether the nature of the work reasonably permits use of a seat at a particular location."

The court also concluded that the physical layout of a workspace "may be relevant in the totality of the circumstances inquiry" to the extent it "inform[s] the expectations of both the employer and employee with respect to job duties." The court cautioned, however, that "reasonableness remains the ultimate touchstone," and employers may not "unreasonably design a workspace to further a preference for standing." Courts may consider evidence that "seats are used to perform similar tasks under other similar workspace conditions," as well as "whether the physical layout may reasonably be changed to accommodate a seat." (It should be the case, however, that if an employer can show that the existing physical configuration of the workspace furthers legitimate business interests, such as efficient processing of customer checkouts and maximization of sales floor space for merchandise, a court should not conclude that the employer must reconfigure the workspace in order to make room for seats.)

Burden of Proof on Availability of "Suitable" Seating

Finally, the court summarily rejected the defendants’ arguments that the availability of a suitable seat is an independent element plaintiffs must prove in establishing a violation of section 14. Instead, the court held, the plain language of section 14 requires a seat when the nature of the work reasonably permits, and does not suggest any burden on the employee to show that a particular seat is "suitable." To the contrary, "an employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists."

Impact of Kilby

Plaintiffs’ counsel already have declared the decision a victory for employees, emphasizing the portions of the opinion that are more favorable for their side. But they ignore the several parts of the opinion that are quite favorable for employers. The court’s emphasis on looking at all the relevant circumstances of how work is performed at a work location; its acceptance of the role of an employer’s business judgment about the need for employees to stand while working; and its recognition that the physical configuration of the workplace could preclude the use of seats, are all aspects of the court’s opinion that will support employers’ defenses against suitable-seating cases.

However, because the court took a multi-factor approach, there remains ambiguity about how any particular suitable-seating case will be decided. Indeed, it remains to be seen how the decision will be applied in Kilby when the case goes back to the Ninth Circuit.

In the meantime, given that the California Supreme Court has now, for the first time, explained the right of working employees to suitable seating, employers are well advised to consider what job duties are being performed by employees while required to stand, and whether, using the factors set forth in Kilby, that work reasonably could be performed while seated.

If nothing else, Kilby surely will encourage a new wave of suitable-seating class and representative actions. Employers need to get ready.