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.

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