In an April 4 2016 opinion, the California Supreme Court clarified the state's rules on when an employer must provide seats to employees. This opinion could have a significant impact on employers in California. The court interpreted California's suitable seating requirement in a way that forces employers to take a close look at whether they comply with the newly articulated standard. The court made the following rulings:

  • In determining whether an employee is entitled to a suitable seat, employers must consider an employee's tasks at a given location where the seat is claimed, rather than a holistic consideration of all of the employee's duties during the entirety of his or her shift;
  • The inquiry must be objective and based on the totality of the circumstances. It must focus on the nature of the work, not an individual employee's characteristics; and
  • The burden is on the employer to show that no suitable seat would be available.


The questions before the court were posed by the Ninth Circuit Court of Appeals(1) and arose from two related federal cases(2) in which plaintiffs sought class certification based on their claims that defendant employers failed to provide suitable seating in the workplace. The court was asked to clarify California Wage Orders 4-2001 and 7-2001, which require employers to provide seating to employees if the "nature of the work reasonably permits the use of seats".

First, in interpreting the phrase 'nature of the work', the court rejected the employers' argument in favour of a holistic approach in which the entire range of an employee's tasks and duties during a complete shift would be considered. In essence, an employee's standing tasks would be weighed against his or her sitting tasks and the entire job would be classified as either 'standing' or 'sitting'. The court instead said that the 'nature of the work' refers to an employee's tasks performed at a given location and the duration, frequency and location of the employee's tasks could not be ignored. The court held: "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, a seat is called for."

Second, the court said that whether the nature of the work 'reasonably permits sitting' is an objective determination based on the totality of the circumstances, including the physical layout of the workplace and the employer's business judgment. Key factors to that qualitative assessment may include the frequency and duration of tasks and the feasibility and practicability of providing seating. The court stressed that the nature of the work is the focus of the inquiry, rather than an employee's individual characteristics, such as physical traits.

Finally, the court clarified that an employer bears the burden of proving that it cannot comply with the wage order because no suitable seating exists. The onus is not on the employee to prove that a suitable seat exists but was not provided.


The court's interpretation has important implications for employers in California. This is particularly true for those with employees in retail, manufacturing and other non-office-based settings, whose employees might engage in a wide variety of tasks that – under the court's newly announced interpretation – could reasonably permit sitting. A careful review of job duties is highly recommended.

For further information on this topic please contact Max C Fischer, Heidi Larson Howell or Geoffrey B Kehlmann at Sidley Austin LLP by telephone (+1 213 896 6000) or email (, or The Sidley website can be accessed at


(1) Kilby v CVS Pharmacy Inc and Henderson v JPMorgan Chase Bank NA, S215614, consolidated in the Supreme Court of California.

(2) Kilby v CVS Pharmacy Inc, 9th Cir 12-56130 and Kemah Henderson v JPMorgan Chase Bank, 9th Cir 13-56095.

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