California High Court Rules on Suitable Seating

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By Lisa Nagele-Piazza

April 4 — Weighing in on two California laws that require employers to provide suitable seating to workers when “the nature of the work” permits it, the California Supreme Court said the phrase refers to an employee's tasks performed at a given location for which the right to a suitable seat is asserted.

In response to questions certified by the U.S. Court of Appeals for the Ninth Circuit, the state high court said April 4 that the phrase “nature of the work” doesn't require a holistic evaluation of the full range of an employee's tasks completed during a shift.

An employer's business judgment and the layout of the workplace are relevant in determining whether sitting is permitted, but courts should apply an objective analysis based on the totality of the circumstances, the California Supreme Court said.

It held that “if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.”

The Ninth Circuit certified the questions to the state high court in December 2013 and stayed the proceedings in two cases pending a response. One case was brought against CVS Pharmacy Inc. by a former cashier, and the other against JPMorgan Chase Bank NA by former tellers .

The unanimous decision was a “huge victory” for employees, Michael Rubin of Altshuler Berzon LLP in San Francisco told Bloomberg BNA April 4. Not only are the employees in the two current cases likely to prevail, but the ruling provides a strong incentive for employers to provide seating in the future, said Rubin, who represented the employees in the cases.

A spokesperson for CVS told Bloomberg BNA April 4 that the company is pleased with the ruling. “Our policies comply with the long-understood, reasonable interpretation of the law that an employer may consider the whole job and not just individual tasks to determine whether employee seating is appropriate, such as when providing prompt and efficient customer service is a critical business objective,” the spokesperson said.

Counsel for JPMorgan didn't immediately respond to Bloomberg BNA's request for comment.

“The Court’s ruling confirms that particular job duties cannot be viewed in isolation, and that an employer’s business judgment, customer service considerations and the physical layout of the workspace are relevant in determining whether an employer will be forced to provide a seat,” Katherine M. Forster of Munger, Tolles & Olson LLP told Bloomberg BNA in an April 4 e-mail.

“We are hopeful this will lead to common sense prevailing,” said Forster, who filed an amicus brief in the case on behalf of the California Chamber of Commerce.

Dispute About ‘Nature of the Work.'

The questions presented to the state's high court stem from two cases pending before the Ninth Circuit that require interpretation of California wage orders that identically provide, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits a seat.”

In Kilby v. CVS Pharmacy, Inc., 9th Cir., No. 12-56130, a former store cashier asserted that she spent about 90 percent of her time at the cash register. She brought a putative class action asserting that CVS's policy of requiring cashiers to stand while operating the cash register violated California Wage Order 7-2001 Section 14(A), which applies to mercantile industries.

The U.S. District Court for the Southern District of California denied class certification and granted summary judgment to CVS in that case. It found that the “ ‘nature of the work' performed by an employee must be considered in light of that individual's entire range of assigned duties in order to determine whether the work permits the use of a seat or requires standing” and that an employer's business judgment is relevant “when attempting to discern the nature of an employee's work.”

In Henderson v. JPMorgan Chase Bank NA, No. 13-56095 (9th Cir.), four former bank tellers alleged similar class action claims under California Wage Order 4-2001 Section 14(A). The tellers said they spent most of their time at the teller station—handling deposits and withdrawals and cashing checks—but they also walked customers to safety deposit boxes, worked the drive-up teller window and checked the ATMs.

In that case, the U.S. District Court for the Central District of California denied class certification, finding that the workers' duties varied based on the shift and the specific location where they worked.

The workers in each case appealed the rulings to the Ninth Circuit.

Ninth Circuit Asks for Guidance

There is no controlling precedent in California that explains how the relevant sections of the wage orders should be interpreted, the Ninth Circuit said in its order certifying the questions to the state supreme court.

Section 14 could have a “dramatic impact” on employers and employees, and the potential penalties could be “in the tens of millions of dollars,” the appeals court said.

The workers argued that the California laws refer to discrete tasks, and if an employee can perform that task while seated, the employer is required to provide suitable seating.

The employers contended that courts should take the “holistic approach” adopted by the district courts, which considers all of the tasks an employee performs on a shift.

Courts should consider the range of tasks the employee performs, the employee's job description, the layout of the workplace and the employer's business judgment, the companies said.

Employers' View Too Broad, Workers' Too Narrow

The companies' argument is too broad and is inconsistent with the purpose of the state laws, the California Supreme Court said.

The companies' view would require weighing all of the employee's seated tasks and all the employee's standing tasks to determine whether the job would be classified as a sitting or standing job, the court said.

The employers' “proposed consideration of all tasks included in an employee's job description ignores the duration of those tasks, as well as where, and how often, they are performed,” the court said. It found that this interpretation could result in different seating requirements for employees with varying job descriptions while they are performing the same tasks.

But the employees' proposed interpretation that the “nature of the work” should consider whether a single task may be performed while seated is too narrow, the court said. It found that this approach could entitle an employee to a seat even if the task was negligible or if being seated would interfere with other standing tasks or the overall quality of the work.

“The reasonableness standard, and its attendant flexibility, was intended to balance an employee's need for a seat with an employer's considerations of practicability and feasibility,” the court said.

Courts should consider the actual work performed—or reasonably expected to be performed—rather than “abstract characterizations” or job descriptions that may not reflect the actual tasks performed, the court said.

“A focus on actual work done and tasks grouped by their location alleviates the problems created by both plaintiffs' and defendants' approaches,” it said.

Business Judgment Relevant, Not Dispositive

In addition to the frequency and duration of tasks, the “totality of the circumstances” approach considers the “feasibility and practicability” of providing employees with seating, the court said.

It rejected the workers' contentions that business judgment shouldn't be considered in the seating determination and that the evaluation should be based only on the objective physical requirements of the relevant tasks.

“Providing a certain level of customer service is an objective job duty that an employer may reasonably expect,” the court said.

But it found that business judgment doesn't include an employer's “mere preference that a task be performed while standing.”

The physical layout of a workspace may also be considered in the totality of the circumstances, but an employer may not unreasonably design the workplace to deny a seat where it would otherwise be reasonable, the court said.

As the California Division of Labor Standards Enforcement said in its amicus brief, the court said, “reasonableness remains the ultimate touchstone.”

Justice Carol A. Corrigan wrote the unanimous opinion for the court.

In addition to Rubin, Connie K. Chan of Altshuler Berzon, LLP in San Francisco; Kevin J. McInerney of McInerney & Jones in Reno, Nev.; James F. Clapp of Clapp Legal APC in Carlsbad, Calif.; and Matthew Righetti of Righetti and Wynne in San Francisco, represented the workers employees. Michael D. Weil and Timothy J. Long of Orrick Herrington and Sutcliffe LLP in San Francisco and Sacramento, Calif., represented CVS. Carrie A. Gonell and John D. Hayashi of Morgan Lewis and Bockius LLP in Costa Mesa, Calif., and Irvine Calif., represented JPMorgan.

To contact the reporter on this story: Lisa Nagele-Piazza in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

For More Information

Text of the opinion is available at

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