United States: California Supreme Court Issues Key "Suitable Seating" Guidance

On April 4, 2016, the California Supreme Court issued a much anticipated opinion in Kilby v. CVS Pharmacy, clarifying the suitable seating requirements under California Wage Orders 4 and 7, which mandate that "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Specifically, the California Supreme Court explained that employers must consider the specific location where employees perform their tasks in determining whether the "nature of the work" permits a seat, use an objective standard based on the "totality of the circumstances" when assessing whether the nature of an employee's work reasonably permits sitting, and that if an employer wants to be excused from the suitable seating requirements, it has the burden of showing that compliance is infeasible.


The California Supreme Court issued its decision at the request of a federal appeals court, which was considering the suitable seating requirements in two class action cases, Kilby v. CVS Pharmacy and Henderson v. JP Morgan Chase Bank. The Kilby case involved a class of clerks/cashiers that spent a large majority of their time operating cash registers. Per company policy, CVS generally did not provide seats to clerks/cashiers because it felt that standing while operating a cash register promoted better customer service. The Henderson case involved a class of bank tellers that spent a majority of their time standing at their stations accepting deposits, handling withdrawals, and cashing checks.

Because these cases involved class actions, they were filed in federal court. The federal court acknowledged that its decision would involve an examination of state law. Therefore, on December 31, 2013, it asked the California Supreme Court to weigh in on the following three specific questions:

  • Does the phrase "nature of the work" refer to an individual task or duty that an employee perform during the course of a workday, or should courts construe "nature of the work" holistically and evaluate the entire range of an employee's duties? (a. 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? 
  • If an employer has not provided any seat, does a plaintiff need to prove what would constitute "suitable seats" to show the employer has violated the suitable seating requirement?

The California Supreme Court's Opinion

"Nature of the Work"

In response to the first question, the California Supreme Court rejected the "holistic" approach and ruled that the "nature of the work" is location-based. If the tasks performed at a specific location reasonably permit sitting, and providing a seat would not interfere with the employee's performance of other tasks that require standing, a seat is required. As such, employers must analyze the subsets of the employee's tasks and job duties by location – for example, those performed at a register – and determine if the employee can feasibly perform the location-specific tasks while seated. Moreover, employers should look at the tasks an employee actually performs or is reasonably expected to perform, not just those listed in a job description, suggested by job title, etc. The Court noted that more frequently performed tasks, or those performed for a longer duration, are more relevant for the suitable seating inquiry than tasks performed briefly or less frequently.

Overall, the Court found that "nature of the work" includes an employee's actual or expected tasks, and if such tasks are performed at a specific location, they should be considered together in determining whether a seat is reasonably permitted.

"Reasonably Permits"

In response to the second question, the Court advised that an objective standard should be applied based on the "totality of the circumstances" to determine whether the nature of the work reasonably permits sitting. An employer may consider business judgment and the workplace's physical layout, but these are not dispositive factors and must also be objectively assessed. With respect to "business judgment," the Court reasoned that an employer can consider "customer service" implications, but it must do so objectively. For example, the Court noted that "[p]roviding a certain level of customer service is an objective duty that an employer may reasonably expect." The Court made the distinction, however, that an employer cannot simply rely on "mere preference" that an employee stand to perform tasks. Rather, "[a]n objective inquiry properly takes into account an employer's reasonable expectations regarding customer service and acknowledges an employer's role in setting job duties. It also takes into account any evidence submitted by the parties bearing on an employer's view that an objective job duty is best accomplished standing." As such, it will likely become critical to be able to objectively show how an employee's performance is adversely effected by sitting when assisting a customer.

Additionally, the Court noted that the physical layout of the employee's workspace is relevant (but also not dispositive) to the suitable seating analysis. The Court cautioned, however, that "just as an employer's mere preference for standing cannot constitute a relevant 'business judgment' requiring deference, an employer may not unreasonably design a workspace to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks."

Finally, the Court noted that an employee's specific physical characteristics are irrelevant.

"Burden of Proof"

In response to the third question about burden of proof, the Court found that the burden is on the employer. If an employer argues that no suitable seat is available, it has the burden of proving unavailability. Particularly, if the employer wants to be excused from the seating requirements, it must show that "compliance is infeasible because no suitable seating exists."

Next Steps

It is important to note, however, that the California Supreme Court's decision is not the final decision in the suitable seating cases; the federal court of appeals that asked the California Supreme Court for guidance must still consider its opinion and decide its cases accordingly. Therefore, while the California Supreme Court's decision is highly instructive on how the suitable seating issues will be evaluated, employers must still wait to see how the federal court will apply the California Supreme Court's guidance in its specific cases.

This decision is being hailed as a victory for employees and is likely to open the floodgates for further suitable seating litigation. As such, employers are strongly encouraged to assess their obligations to provide suitable seating for its employees and should take all employee requests for a seat seriously. Your Lewis Brisbois employment law attorney is available to answer any questions and provide assistance to ensure compliance with these new suitable seating requirements.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Meryl Mills
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions