Suitable Seating

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In Kilby v. CVS Pharmacy, the California Supreme Court attempted to clarify the meaning of the “suitable seating” requirement in the Division of Labor Standards Enforcement wage orders. It specifically states that, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The court decided Kilby in response to a request by the Ninth Circuit seeking clarity as to the meaning and application of the “suitable seating” requirement. The reason lay in the appeal of two federal district court decisions. In one case, a clerk/cashier working for CVS Pharmacy filed a class action lawsuit alleging violation of her “suitable seating” rights. The plaintiff had performed a variety of duties in CVS’s stores, including operating a cash register, stocking shelves and various cleaning duties. The lower court granted summary judgment in favor of CVS in deference to the company’s business judgment and noting that many of the duties performed by clerks/cashiers required employees to stand. In the other case, a bank teller working for JP Morgan Chase Bank had performed duties both at her station (such as accepting deposits and handling withdrawals) and away from her station (such as escorting customers to safety deposit boxes and ensuring that automatic teller machines were working properly). These 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 certification of a class of employees purportedly denied “suitable seating.”

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Kilby is important because employees will likely bring class actions and claims for civil penalties under California’s Private Attorney General Act (PAGA) based on its analysis.

So when is “suitable seating” required?

The Meaning of “Nature of the Work”

Kilby first addressed the meaning of the “nature of the work” that must be examined. It rejected a broad definition that would require weighing all of an employee’s “standing” tasks against her “sitting” tasks. However, it also rejected a definition that would require an evaluation of whether a “single task” could feasibly be performed while seated.

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Instead, Kilby described the “nature of the work” as requiring examination of “subsets” of an employee’s total tasks and duties by location (such as those performed at a cash register or a teller window) and considering whether it is feasible for an employee to perform each set of location-specific tasks while seated. Tasks that are performed more oft en or for a longer period of time are more important to the inquiry than tasks performed briefly or infrequently.

When Does the Nature of the Work “Reasonably Permit” the Use of Seats?

In a frustratingly ambiguous way, Kilby found that the “totality of the circumstances” test determines whether an employee is entitled to a seat. The inquiry begins with an examination of tasks — grouped by location — and whether the tasks can be performed while seated or standing. The court held that “numerous factors,” including frequency and duration of the tasks, as well as the practicability of providing seating were to be considered.

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As to specific factors that the Ninth Circuit asked the court to consider, Kilby vaguely stated that the employer’s “business judgment” must be accorded some deference, but that does not include an employer’s “mere preference” that particular tasks be performed while standing. Kilby also noted that physical layout was relevant. Finally, Kilby rejected the suggestion that physical differences among employees be taken into consideration, noting that suitable seating “requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does.”

What Can Employers Do in Light of Kirby ?

Kilby made clear that if seating is denied, it is the employer’s burden to show that compliance is not feasible. Unfortunately, the ambiguity of the test leaves considerable room for claims to be made by employees.

As an employer, you can do certain things to protect yourself. First, you can evaluate the actual tasks that a job requires to determine if they can be performed sitting down and if so, determine whether it is feasible to provide seats that do not interfere with job duties or customer service. Second, if there are extended periods of time in a position that do not require standing or movement, you may want to consider whether it is feasible to provide seats. Finally, you may want to consider placing a “suitable seating” policy in your employee handbook. If employees have a concern regarding seating, there is reason to encourage employees to raise their concerns with you before going to a lawyer.   Daniel Ho

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