Oral arguments in Kilby v. CVS Pharmacy, Inc., and Henderson v. JPMorgan Chase Bank NA. were presented on January 5, 2016, before the California Supreme Court. Both cases were referred by the Ninth Circuit, which asked the Supreme Court to decide how it should interpret California’s suitable seating law.

Most California Wage Orders require “suitable seats when the nature of the work reasonably permits the use of seats.” Kilby is a PAGA representative action brought by CVS cashiers, and Henderson is a PAGA representative action brought by bank tellers. The cashiers and bank tellers contend that their job positions involve standing for long periods of time, but the nature of their work reasonably permits the use of seats. The California Supreme Court agreed to consider the following questions:

  • Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe “nature of the work” holistically and evaluate the entire range of an employee’s duties?
    • If the courts should construe “nature of the work” holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?
  • When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider any or all of the following:
    • The employer’s business judgment as to whether the employee should stand;
    • The physical layout of the workplace; or
    • The physical characteristics of the employee.

The penalty exposure, as the Ninth Circuit noted, can be in the “tens of millions of dollars,” because Labor Code sec. 2699(f)(2) permits a civil penalty of at least $100 for each aggrieved employee per pay period in which a seat was not provided.

A written opinion is expected within 90 days of the oral argument.