Why it matters

High-profile litigation seeking suitable seating for cashiers and bank tellers is moving forward after the Ninth Circuit Court of Appeals reversed dismissal of the suits and remanded the cases. The plaintiffs alleged that their employers had violated state wage orders by not providing seats. A federal district court dismissed the actions and the workers appealed to the Ninth Circuit, which turned to the California Supreme Court for help. The state's highest court ruled that seats should be provided to employees if the "nature of the work" reasonably permits, using a totality of the circumstances test that includes consideration of the employer's business judgment and the tasks performed by the employee. In light of that decision, the three-judge federal appellate panel sent the cases back down to the district court for further proceedings. In a separate order, the panel also affirmed class certification of a group of cashiers in a similar suit. The federal courts will now face the challenge of applying the California Supreme Court's standard.

Detailed discussion

The dispute began when Nyketa Kilby, a cashier at CVS Pharmacy, and Kemah Henderson, a teller at a bank, brought putative class actions against their employers. Both women alleged that the companies 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 requirement to provide seating should apply 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," the companies argued that 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 companies contended.

Both federal district courts adopted the holistic approach advocated by the companies and granted summary judgment. 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 California's highest court.

In a unanimous opinion, the California Supreme Court determined that the "nature of the work" refers to an employee's tasks performed at a given location for which a right to suitable seat is claimed, rather than a "holistic" consideration of the entire range of an employee's duties anywhere on the jobsite during a complete shift. "If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, then a seat is called for," the court said.

Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances, the court explained. The analysis should begin with an examination of relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing, the court said. This task-based assessment must be balanced against considerations of feasibility, however, such as whether providing a seat would unduly interfere with other standing tasks and whether the frequency of transition from sitting to standing may interfere with the work.

"This inquiry is not a rigid quantitative analysis based merely upon the counting of tasks or amount of time spent performing them," the court noted. "Instead, it involves a qualitative assessment of all relevant factors." Relevant factors include the employer's business judgment (including expectations regarding customer service), although the court cautioned that the standard is an objective one and "does not encompass an employer's mere preference that particular tasks be performed while standing."

While the physical layout of a workspace is also a relevant factor, employers may not unreasonably design a workspace to further a preference for standing, the court wrote, with reasonableness as "the ultimate touchstone." The court agreed with the plaintiffs that physical differences between employees are a relevant factor.

In light of the April decision, the Ninth Circuit returned the cases to the district court. "We reverse and remand to the district court to reconsider in light of the California Supreme Court's opinion," the panel wrote in an unpublished memorandum.

The same day, the federal court affirmed certification of a class of Wal-Mart cashiers in a similar suit brought by Nisha Brown. On appeal, the employer challenged the certification by raising concerns that there was insufficient commonality among the proposed class members and that common issues did not predominate, but the panel found the proposed class met the requirements of the Federal Rules of Civil Procedure.

"The district court concluded that 'Wal-Mart had a common policy of not providing seats for its cashiers,' " the Ninth Circuit wrote. "The district court also concluded that there was a common nature of work among the proposed class, finding that (1) 'Wal-Mart cashiers spent the majority of their time working at registers during the class period,' and (2) the work done by cashiers at registers was generally the same across stores, register locations and configurations, shifts, and physical activities."

These findings supported the district court's conclusion that a trier of fact could determine whether these common tasks could reasonably be performed while seated and that such a determination would apply to all Wal-Mart cashiers in California stores, the panel said.

The court also rejected Wal-Mart's argument that California's Private Attorneys General Act (PAGA) requires individualized penalty inquiries that would defeat the commonality or predominance requirements for purposes of class certification. The statute specifies civil penalties for violations of the state's Labor Code, but courts are permitted to award a lesser amount based on the facts and circumstances of a particular case.

"However, even if the district court decides to reduce the mandatory civil penalty, [the Labor Code] calls for a case-wide (rather than individualized) inquiry," the court said, affirming class certification and moving the case forward.

To read the memorandum in Kilby v. CVS Pharmacy, click here.

To read the memorandum in Brown v. Wal-Mart Stores, click here.