To sit or not to sit, that is the question.  And now the California Supreme Court has given us an answer.  Well, sort of.  They have told us how to find the answer.  Even that’s a stretch.  Pull up a seat and I will explain.

To help it resolve two class actions involving California Wage Order requirements that employers provide employees with suitable seats, the Ninth Circuit recently certified some questions for the California Supreme Court.  The Supreme Court responded in Kilby v. CVS Pharmacy, Inc.  As stated verbatim in the Supreme Court’s responsive opinion, these were the questions posed by the Ninth Circuit:Lucas Clary 02_web

  1. 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?
  2. 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?
  3. 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?”

If you just want the short answers, the opinion was kind enough to give us those right up front as well.  Again, verbatim:

  1. 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. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
  2. 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. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.
  3. 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.

So, there you go.  If you just wanted the answers, you can stop reading now.  But if you want a little elaboration and more background on how the Court arrived at those answers, and my thoughts on what employers should take away from the opinion, remain seated and continue ahead.

The Cases

The two class actions before the Ninth Circuit involved identical provisions of two separate Wage Orders.  In Kilby v. CVS Pharmacy Inc., a former CVS customer service representative filed a class action alleging that CVS violated Wage Order No. 7-2001 (mercantile industry) by failing to provide employees seats during shifts.  In large part, the employees’ duties consisted of operating cash registers, straightening and stocking shelves, cleaning the register, gathering shopping baskets, and removing trash.

Similarly, in Henderson v. JP Morgan Chase Bank NA, a group of bank tellers sued Chase alleging it violated Wage Order No. 4-2001(professional/technical/mechanical occupations) by also failing to provide seats to its tellers.  The tellers’ duties consisted of a mix between those around their teller stations such as handling deposits and withdrawals, and those away from their stations such as escorting customers, servicing ATM machines and working the drive-up window.

Both cases turned on identical phrases in the two Wage Orders stating that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  In both cases, the plaintiffs appealed to the Ninth Circuit after procedural losses in the respective district courts.  The Ninth Circuit punted (for now), instead asking the California Supreme Court to answer the above questions to aid in the Ninth Circuit’s analysis.  The Supreme Court did just that, as set forth above.   Here’s how they arrived at their answers.

The “Nature of the Work”

The defendants in the two cases argued that, when determining whether “the nature of the work reasonably permits the use of seats,” courts should examine “an employee’s job as a whole, i.e., a ‘holistic’ consideration of all of an employee’s tasks and duties throughout a shift.”  The plaintiffs, in turn, argued that the inquiry should involve a “task-by-task evaluation of whether a single task may feasibly be performed seated.”

After analyzing a long and tortured history of California wage law, which I will spare you here, the court rejected both arguments as inconsistent with the IWC’s intent in placing that language in the Wage Orders.  The court held that the defendants’ “all or nothing approach” ignored factors such as the duration, location, and frequency of tasks, and would unfairly deny a seat to an employee who spends a substantial portion of his workday performing tasks that can be done while seated merely because other aspects of the job required standing.  On the other hand, the plaintiff’s approach would have the opposite effect.  Employer’s would have to provide employees a seat if any single task could be performed while seated, even if the employee only briefly performs the task for negligible periods during each shift.

The court instead split the baby.  It held that “courts must examine subsets of an employee’s total tasks and duties by location,” and then determine whether it’s feasible to perform those tasks while seated.  If so, an employee is entitled to a seat at that location.  But the employee is not entitled to a seat during other parts of a shift while at locations where seating is not feasible.

“Reasonably Permits”

The California Supreme Court next set out to answer the Ninth Circuit’s questions whether the analysis involves consideration of the employer’s business judgment, the workplace layout, and/or the employee’s physical characteristics.

Chase and CVS argued that the court should consider, and even give deference to, the employer’s business judgment as to whether work should be performed standing or sitting.  The plaintiffs argued that the employer’s opinion should be irrelevant, with the focus instead being on the objective nature of the work.  The court again found middle ground. It held that providing a certain level of customer service is an objective job function that employers should be able to assess in determining whether use of a seat is permitted in a certain location.  The court did clarify, however, that “business judgment” does not encompass an employer’s “mere preference.”  So, while business judgment may be considered, so too may objective evidence that sheds light on the reasonableness of that judgment.

Like business judgment, the court held that the physical layout of the work location can be considered as a relevant factor in assessing whether the nature of the work reasonably permits use of a seat.  Again, though, the court cautioned that an employer cannot “unreasonably design a workspace to further a preference for standing.”  In other words, no cheating.

Finally, the court found that consideration of employee’s physical characteristics, rather than the nature of the work, was inconsistent with the IWC’s intent.  That is, if the job permits seating for one, it permits seating for all.

Burden to Show Seating is Available

Finally, the court cleared up any ambiguity about who bears the burden of proof in a suitable seating inquiry.  The defendants argued that, even if the nature of the work permitted suitable seating, the plaintiff must still show that a suitable seat was available but not provided.  The court rejected that argument, holding that an employer who seeks to be excused from the suitable seating requirement bears the burden of showing compliance is infeasible because no suitable seat exists.


If you’re still with me, here is the moral of the story: be careful.  The case leaves a lot of room for factual interpretation.  We are still waiting to see how the Ninth Circuit will treat these two specific cases in light of the Supreme Court’s opinion, let alone how various courts will interpret suitable seating cases under this analysis down the road.

But for now, the court found enough middle ground in its opinion for both plaintiff’s lawyers and employers to claim victories.  Employers can take comfort knowing that their business judgment and the layout of the workplace are relevant factors in assessing whether a given task permits suitable seating.  The court’s focus on all of the circumstances surrounding work performed at a given location, rather than a task-by-task approach, is also good news for employers.

On the flip side, employers now clearly bear the burden of showing that no suitable seat exists.  Employers must also examine all of the separate locations in which an employee performs tasks during a shift, and determine independently whether the nature of the work performed at each location reasonably permits the use of a seat.  If all of that leaves your head spinning, you may want to find a place to sit down.  That is, if doing so is reasonably permissible.