bored worker on little chair.

California Supreme Court Addresses “Suitable Seating Rule”

California’s “suitable seating” rule states that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” See, e.g., Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001).  In reviewing two large class actions involving this rule, the Ninth Circuit recently certified three questions to the California Supreme Court regarding the rule’s interpretation. Specifically, the Ninth Circuit has been asked to analyze the rule for a class of CVS cashiers, and another class of Chase bank tellers. And recently, in Kilby v. CVS Pharmacy, Inc., No. S215614 (Cal., April 4, 2016), the California Supreme Court resolved all three questions in favor of employees.  The three questions, and the Court’s holdings, are addressed in turn below:

Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’ s duties performed during a given day or shift?

The California Supreme Court held that the “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift.

This means that, where the tasks being performed at a given location reasonably permit sitting, and providing a seat would not interfere with performance of any other tasks that may require standing, the employer must provide the employee a seat for that task

When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?

The Court held that whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the “totality of the circumstances.” An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors, and the inquiry focuses on the nature of the work, not an individual employee’s characteristics.

While the employees argued that “business judgment” should never be considered, the Court did recognize that in certain circumstances, the employer’s discretion with regard to decisions like providing “customer service” should be respected.  The Court recognized that in many instances, standing in the presence of customers may in fact be good customer service.  However, the Court refused to give employers complete discretion, and held that an employer’s “mere preference” to require its employees to stand will not be sufficient without more.

If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?

The Court held that, the nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

These three pro-employee holdings will undoubtedly expose more employers to lawsuits challenging policies that require standing.  This is particularly true because these claims may be brought under the Private Attorneys General Act (“PAGA”), which permits a civil penalty of at least $100 per pay period in which a seat was not provided, for each “aggrieved” employee. Accordingly, employers should be sure to document the objective criteria justifying work rules that require employees to stand.



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