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.

Background

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.

Authors
Meryl Mills
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.