Executive Summary: The California Supreme Court's recent decision in Kilby v. CVS Pharmacy/Henderson v. JPMorgan Chase has clarified the state's standards concerning when employers must provide suitable seating to their employees.  While the holding will permit employees to sit on the job under certain circumstances based on the nature of work actually performed (rather than an abstract, such as a job description), the state high court validated a reasonable interpretation of the requirement that permits employers to use their business judgment (including customer service considerations) and the physical layout of workspaces when determining whether seating is required.

On Monday, the California Supreme Court issued its decision in Kilby v. CVS Pharmacy/Henderson v. JPMorgan Chase, Case No. S215614, which examined the state's requirement for providing suitable seating to employees.  Under California law, employers are required to provide suitable seats to their employees when the "nature of the work reasonably permits the use of seats."  If the nature of the work requires standing, the law only requires employers to provide seating near the work area when employees are not engaged in active duties and the use of such seats does not interfere with their duties. 

At issue in this case was the precise standard of when employers are  required to provide suitable seating—specifically, with respect to the quoted phrase above.  The employers  argued that the standard required them to look at each employee's duties as a whole during a complete shift. On the complete opposite end of the spectrum, the employees contended that each particular task had to be examined, and that the inquiry must focus not on each individual employee's duties, but on the nature of the work to be performed.

The California Supreme Court rejected both arguments and took a middle approach to end the parties' debate.

First, the Court held that the "nature of the work" refers to an employee's tasks performed at a given location for which a right to a 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, and so long as provision of a seat would not interfere with the performance of the employee's duties.  In other words, the Court clarified that the focus should be on the actual work done at a particular location—not simply expectations or an abstract, such as a job description—to determine whether seating may be appropriate, even if some of the job duties at that location included standing tasks.  In arriving at this conclusion, the Court relied upon the Industrial Welfare Commission's "reasonability standard," as described here, noting that this standard provides more flexibility with respect to determining whether a seat should be provided based on the nature of the work actually performed. This enables courts to balance an employee's need for a seat with an employer's considerations of practicability and feasibility (e.g., whether providing a seat would severely interfere with other standing tasks).

Next,  the Court held that whether the nature of the work "reasonably permits" sitting must be determined objectively based on the totality of the circumstances.  Notwithstanding this holding, the Court identified, as factors to be considered, an employer's business judgment, including customer service considerations, and the physical layout of the workplace.

Finally, the Court held that while an employee has an initial burden of proof to demonstrate that the nature of the job reasonably permits seated work, if an employer argues there is no suitable seat available, the employer must prove unavailability.

The Bottom Line: The ruling, while anticipated to be a lukewarm decision for employers, nonetheless acknowledges a reasonable interpretation that permits employers to consider  business needs and physical feasibility in determining whether seats must be provided to workers. Employers nevertheless are strongly advised to have their seating policies examined to ensure compliance with these standards.  Prior to the decision, there had been a rash of PAGA representative actions alleging noncompliance with the seating requirements.  These are expected to continue in light of the court's ruling, as well as our state's exception to using class arbitration waivers to waive PAGA representative actions.