The California Supreme Court ruled that employers cannot deny a worker a place to sit just because they prefer the person stand, and they must consider the employee’s work station, not their overall duties, when determining whether to provide a seat. The court’s opinion stemmed from lawsuits brought by cashiers at the CVS drugstore chain and tellers at Chase Bank who said they were wrongly denied a place to sit while working. Experts called the opinion a victory for the cashiers and tellers.
Nykeya Kilby worked for eight months as a customer service representative for CVS Pharmacy, Inc. During both the interview and training process, CVS told Kilby it expected her to stand while performing her various duties. Although actual duties varied by both store and shift, Kilby’s duties included operating a cash register, straightening and stocking shelves, organizing products in front of and behind the sales counter, cleaning the register, vacuuming, gathering shopping baskets, and removing trash. CVS did not provide Kilby a seat for these tasks. Kilby filed a federal class action lawsuit alleging CVS violated Wage Order No. 7-2001, applicable to the mercantile industry. The district court ruled that an employee’s “entire range of assigned duties” must be considered to determine whether the work permits the use of a seat or requires standing. It noted “there is no dispute that many of the duties performed by Clerk/Cashiers at CVS require the employee to stand while performing them . . . .” Accordingly, it granted summary judgment in favor of CVS and Kilby appealed.
Kemah Henderson and three other bank tellers worked at JPMorgan Chase Bank branches. They filed a class action suit against Chase for violating the suitable seating provision of Wage Order No. 4-2001, section 14, subdivision (A) (section 14(A)), applicable to “professional, technical, clerical, mechanical, and similar occupations.” The district court noted that the job duties varied depending on the shift or branch location and whether the employee was a lead or regular teller. Based on these differences, the district court denied class certification and Henderson appealed.
The Ninth Circuit Court of Appeal certified three questions that needed clarification to the California Supreme Court involving California wage order requirements that an employer provide suitable seating for employees under certain circumstances which were answered in the case of Kilby v CVS Pharmacy.
Over a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the Industrial Welfare Commission (IWC), giving it authority to investigate various industries and promulgate wage orders establishing minimum wages, maximum work hours, and conditions of labor. Wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders.The wage orders at issue here state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001).)
The California Supreme Court answered the Questions posed by the federal Ninth Circuit Court of Appeals as follows:
(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.
With the answers to this questions, the matter will now be decided by the Ninth Circuit in due course. But Michael Rubin, an attorney for the plaintiffs, said the decision was a victory for all workers who have been denied a place to sit while they perform repetitive tasks in fixed locations. “For the millions of California worker in the retail industry, this is going to mean that in the next few weeks, their employers will start giving them seats, which will promote health and comfort,” he said.