Requirement for suitable seating for working employees by the California Supreme Court

The California Supreme Court issued a long-awaited opinion concerning the Industrial Welfare Commission’s (IWC) Wage Orders’ suitable seating rules, which question arose from the two federal appeals in Kilby v. CVS Pharmacy, Inc., as well as in Henderson v. JPMorgan Chase Bank NA. [See Kilby v. CVS Pharmacy, Inc., S215614, 2016 Cal. LEXIS 1950]. The cases involve application of identical seating provisions contained in wage orders promulgated by the Industrial Welfare Commission (the IWC) in the context of two different industries.

In Kilby, plaintiff Nykeya Kilby was a clerk-cashier for CVS whose expected duties included cashiering, organizing and stocking products, cleaning and maintaining the store, and providing a high level of customer service. CVS did not provide seats to clerk-cashiers when performing any of these tasks. Kilby filed a class action alleging a violation of section 14 of Wage Order No. 7-2001 (which is applicable to the mercantile industry) and seeking recovery of civil penalties under the California Labor Code Private Attorneys General Act ("PAGA"), Cal. Lab. Code § 2698 et seq. The district court in Kilby held that sections 14(A) and 14(B) were mutually exclusive, and the nature of an employee’s work either did or did not require standing. As a result, the district court reasoned, the determination whether Section 14(A) or 14(B) applied required a holistic view of the work performed by CVS clerk-cashiers, including their "entire range of assigned duties."

Using this approach, the district court concluded that the overall nature of a CVS clerk-cashier’s work required standing and therefore there was no violation of Section 14. Later on, Kilby filed an appeal.

The Ninth Circuit in Kilby certified three unresolved and determinative questions of California law requiring decision by the California Supreme Court.

The California Supreme Court reviewed the history of the wage order and the Division of Labor Standards Enforcement’s (“DLSE”) position on Section 14’s requirements. The court determined that the IWC’s intended meaning of "the nature of the work" "cannot be meaningfully answered without consideration of the underlying purpose of the seating requirement."

Thus, based on its interpretation after reviewing, the court held that the right to seating must be decided based on an analysis of the job as generally performed, and not on the physical differences between employees. The court said that is because Section 14 refers to the "nature of the work," and not the "nature of the worker."The court, however, also noted that the Section 14 analysis is not the same as whether a particular employee with disabilities would be entitled to a seat as an accommodation.

Accordingly, the court imposed on employers the burden of proving that even if a job theoretically could be performed while sitting, there is no availability of any type of seating that would be suitable to absolve the employer of liability.

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