By Chris Bruce
Feb. 12 — The California Supreme Court is poised to clarify a state labor law question with far-reaching consequences for workplaces there: When must employers provide seating for employees?
At issue is Section 14(A) of California Wage Order 4–2001 and California Wage Order 7–2001, a regulation with the force of law that says “All working employees shall be provided with suitable seats when the nature of the work reasonably permits a seat.”
The California court is expected within weeks to answer questions certified by the U.S. Court of Appeals for the Ninth Circuit, which in December 2013 asked for an interpretation of Section 14(A), citing uncertain precedent, the “direct impact on countless citizens” in California, and the potential for tens of millions of dollars in penalties.
Section 14(A) applies only to workplaces in California, but many different employers there could be affected, according to Laura Reathaford, a partner with Venable LLP in Los Angeles who represents companies in employment disputes, including those brought under California's Private Attorneys General Act of 2004 (PAGA), the vehicle for three cases now at the forefront of so-called suitable seating litigation.
“We have retailers, banks and a variety of other industries where employees might argue that the nature of their work reasonably permits a seat,” Reathaford told Bloomberg BNA Feb. 10.
Attorney Matthew Righetti of Righetti Glugoski P.C. in San Francisco, who represents plaintiffs in seating cases against JPMorgan Chase & Co., Bank of America, Wal-Mart Stores, and CVS Pharmacy Inc., said employers are paying defense lawyers huge sums to evade the requirements of Section 14(A), which he called “relatively short and mandatory in its terms.”
“The employers are being taken for a ride,” Righetti told Bloomberg BNA Feb. 10. “For the particular positions that are at issue (tellers, cashiers, greeters) there is no real defense to these relatively straightforward claims,” he said.
Three cases, all initially framed by the plaintiffs as class actions, are being closely watched. The Ninth Circuit referred questions in two of those to the California Supreme Court, which heard argument in January.
One was brought by Nykeya Kilby, a cashier for CVS Pharmacy, Inc., who, according to the Ninth Circuit, spent 90 percent of her time at work running a register at the front of a CVS store, but without a seat (Kilby v. CVS Pharmacy Inc., 2013 BL 359084, 9th Cir., No. 12-cv-56130, questions certified, 12/31/13).
The other case was brought by Kemah Henderson, a former JPMorgan Chase teller, who, like other tellers, the Ninth Circuit said, spent the majority of her time taking deposits, cashing checks and handling withdrawals from a seatless workstation (Henderson v. JPMorgan Chase Bank, 2013 BL 359084, 9th Cir., No. 13-cv-56095, questions certified, 12/31/16).
The cases are being considered together, and are on the California Supreme Court's docket as No. S215614.
The third case involves a lawsuit by Nisha Brown, a Wal-Mart cashier (Brown v. Wal-Mart Store Inc., 9th Cir., No. 12-cv-17623, ruling deferred, 1/2/14).
That action also is in the Ninth Circuit, but instead of referring questions in that controversy to California, the Ninth Circuit put the case on hold until the California court decides the JPMorgan and CVS questions.
The court in the suit against Wal-Mart granted Brown's motion for class certification, while courts refused to certify classes against CVS and JPMorgan.
Other cases also are in the works, including one in the U.S. District Court for the Central District of California against Bank of America brought by former tellers.
The Ninth Circuit reinstated that suit in an unpublished September ruling, reversing a district court that said the National Bank Act preempted it. The district court has given Bank of America until Feb. 15 to argue why it shouldn't be sent back to state court.
According to Righetti, banks and tellers received special attention during the California court's Jan. 5 argument. He said claims involving banks are some of the strongest claims for plaintiffs.
“One reason the bank cases are strong is because all tellers do essentially the same kind of work, yet some banks provide seats to tellers for use while others do not,” he said. “As an industry, there seems to be no dispute about whether the work done at a teller counter can be performed equally well standing or from a suitable seat.”
In its December 2013 order, the Ninth Circuit asked the California Supreme Court to explain what Section 14(A) means.
For example, does the “nature of the work” refer to an individual task or duty, or should courts interpret the phrase “holistically” in terms of the broad range of an employee’s duties?
If “nature of the work” requires a holistic or “job as a whole” analysis, the Ninth Circuit also asked, “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?”
And when courts consider 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?
Finally, if an employer hasn't provided a seat, does a plaintiff have to prove what would constitute “suitable seats” to show the employer is violating Section 14(A)?
Wal-Mart did not respond to a request for comment on the litigation. JPMorgan spokeswoman Suzanne Alexander and Bank of America's Betty Riess both Feb. 8 declined to comment.
Mike DeAngelis, spokesman for CVS Health, Feb. 9 said his company's 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.”
If the California Supreme Court provides a different interpretation of the law, he added, “we will act accordingly.”
DeAngelis' statement highlights several questions at the core of the case.
One of the most important is the first question certified — whether claims should be considered on the basis of particular tasks, or by looking at the employee's duties as a whole.
The plaintiffs say Section 14(A) requires a focus on specific tasks. In their opening brief in the California Supreme Court, lawyers for the plaintiffs said Section 14(A)'s “simple and straightforward language” yields a clear standard that avoids what the brief called inconsistent and even absurd results that might otherwise result by factoring an employer's “subjective preference.”
“In plain, simple terms, §14(A) requires employers to provide covered employees a suitable seat during those times when the nature (i.e., the objective characteristics) of the specific task, duty, function or assignment they are performing reasonably permits the use of seats,” the April 2014 brief said.
Other groups have offered support, including the AARP, which submitted a brief in August 2014.
Righetti said employers want to focus seating cases on whether they, and not state labor rules, decide whether seating must be provided.
“That’s a very difficult argument for the employers to make — and very easy to beat back — because wage orders in California are all built around taking discretion away from the employer,” Righetti told Bloomberg BNA Feb. 10, saying the California wage orders set mandatory minimum working conditions.
But employers say things are more complicated. In a brief filed June 11, 2014, in the California court, JPMorgan urged the court to apply a holistic analysis and to allow courts to consider the employer's business judgment on questions such as the physical layout of the workplace.
Otherwise, JPMorgan said, the plaintiffs' interpretation of the law would lead to absurd results.
“If a group of nurses rides the hospital elevator to go from one patient's room to another, then Petitioners' interpretation would require seating in the elevator, since riding the elevator could be done while seated,” the brief said.
The plaintiffs rejected that and other arguments, saying such claims would be foreclosed by Section 14(A)'s “reasonableness” requirement, but the California Chamber of Commerce and the U.S. Chamber of Commerce chimed in with a September 2014 brief, saying courts should allow employers to have a say.
“Because the employer creates the job to meet its business needs, and because it is the employer who is best suited to judge the requirements of its business, the employer's judgment deserves paramount consideration,” the brief said.
The California Supreme Court frequently delivers opinions within 90 days of oral argument. A decision is expected soon.
The Ninth Circuit certified the following questions to the California Supreme Court:
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The Ninth Circuit's order certifying questions to the California Supreme Court is at http://www.bloomberglaw.com/public/document/Kemah_Henderson_et_al_v_JPMorgan_Chase_Bank_Docket_No_1356095_9th/2.
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