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.

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Meryl Mills
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