United States: Time For CA Supreme Court To Take A Stand On Suitable Seating – Oral Argument In Kilby v. CVS Pharmacy, Inc.

Last Updated: January 7 2016
Article by Jeffrey D. Polsky

We've been writing about California's suitable seating requirements for over five years and are still waiting for a grown up in authority to tell us what the law means. But don't feel bad for us. Feel bad for the thousands of California employers who face class actions lawsuits for not complying with a law that no one is able to explain.

Most of the California Wage Orders say that: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." The only problem with that requirement is that no one knows how to interpret the part that comes after "All working employees shall be provided with." What seats are "suitable"? How does the "nature of work" fit into the equation and who determines that? When does that undefined nature of the work "reasonably permit" suitable seats?

The Ninth Circuit asked the California Supreme Court for clarification, the California Supreme Court asked the Division of Labor Standards Enforcement ("DLSE") to weigh in, and now the issue is back with the California Supreme Court, which heard oral argument yesterday in Kilby v. CVS Pharmacy, Inc. Our own Cristina Armstrong was there. She and Dave Faustman drafted an amicus brief in support of CVS for the Retail Litigation Center. Cristina shared with us this summary of the argument:

* * * * * * * * * *

Chief Justice Cantil-Sakauye and Justices Cuellar, Corrigan, Chin, and Liu were present for the argument. It was announced that Justices Werdegar and Kruger were "indisposed," but would be listening to the arguments.

Plaintiffs' counsel's main theme was that the Wage Order seating requirement is a minimum labor standard, akin to overtime or minimum wages, that must have an objective measure. He argued that an employer's business judgment should never have any part in the analysis of whether to provide seating.

Counsel for CVS advocated the "holistic" approach – an evaluation of the totality of the circumstances – which includes considering an employer's legitimate business judgment in determining what's reasonable. CVS's counsel even used an example from the amicus brief that we wrote for the Retail Litigation Center when describing the importance of customer service. He noted that standing is a sign of respect that we use in many situations, including standing for the Justices when they entered the courtroom. Counsel for JP Morgan emphasized that not all employers are the same, and that the Court' s opinion must guide employers on how to address situations: (1) where employees have duties that require seats all the time, (2) where employees have duties that require them to be on their feet all the time, and, most significantly, (3) where duties that allow employees to sit are intermittent and intertwined with duties that require standing. She, too, supported the holistic approach.

Most of the questions concerned the phrase "nature of the work" and whether the proper unit for analysis was the job as a whole or the discrete duties of each job. Justice Chin asked no questions. Justice Corrigan only asked questions of CVS and JP Morgan, and those questions indicated that she favors the plaintiffs' position. The Chief Justice asked a few questions to both sides. Most of the questions from the bench came from Justices Cuellar and Liu. Justice Liu's commentary seemed to favor the employers. He was most skeptical of plaintiffs' position that an employer's business judgment should never be considered in determining whether the nature of the work reasonably permits seats.

It's hard to say which way the court will go, especially with two Justices absent. My best guess is that the Court will take the position that the DLSE described in the amicus brief the Court requested. Justice Cuellar even quoted the DLSE's position on the employer's business judgment during the hearing, which states:

In determining whether the nature of the work "reasonably permits" seating, various facts and conditions, including the physical layout of the workplace, and information from both the employer and employee regarding duties or tasks which give rise to application of the requirement must be objectively assessed and applied in a reasonable and practical manner. An employer's business judgment is a factor for consideration, but, where the nature of the work otherwise reasonably permits seating, the employer's business judgment does not control nor should it be given deferential weight. The physical characteristics of an employee will typically not be a relevant factor.

The DLSE's position splits the baby in a way that the Court could find persuasive, but may still not provide the clarity that the 9th Circuit has asked for and, more importantly, that employers need.

* * * * * * * * * *

Thanks for that firsthand summary, Cristina. We'll sit tight (assuming the nature of our work reasonably permits it) and continue to wait for some definitive guidance on this issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Jeffrey D. Polsky
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