California Supreme Court Adopts Task-Based Interpretation of Wage Order that Requires Employers to Provide Seats if “Nature of the Work Reasonably Permits”

In an opinion issued Monday, April 4, the California Supreme Court clarified the state’s rules about when an employer must provide employees with seats. This could have a significant impact on employers in California. The Court interpreted California’s “suitable seating” requirement in a way that forces employers to take a close look at whether they are in compliance with the newly articulated standard. The court made the following rulings:

1. In determining whether an employee is entitled to a suitable seat, employers must consider an employee’s tasks at a given location where the seat is claimed, rather than a “holistic” consideration of all of the employee’s duties during the entirety of his/her shift;
2. The inquiry is an objective one, based on the totality of the circumstances. It focuses on the nature of the work, not an individual employee’s characteristics; and
3. The burden is on the employer to show that no suitable seat would be available.

The questions before the Court were posed by the Ninth Circuit Court of Appeals and arose from two related federal cases in which plaintiffs sought class certification based on their claims that defendant-employers failed to provide suitable seating in the workplace. The Court was asked to clarify California Wage Orders 4-2001 and 7-2001, which require employers to provide seating to employees if the “nature of the work reasonably permits the use of seats.”

First, in interpreting the phrase “nature of the work,” the Court rejected the employers’ argument in favor of a “holistic” approach in which the entire range of an employee’s tasks and duties during a complete shift would be considered. In essence, an employee’s “standing” tasks would be weighed against her “sitting” tasks and the entire job would be classified as either “standing” or “sitting.” The Court instead said the “nature of the work” refers to an employee’s tasks performed at a given location and the duration, frequency and location of the employee’s tasks could not be ignored. The Court held, “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.”

Second, the Court said that whether the nature of the work “reasonably permits sitting” is an objective determination based on the totality of the circumstances, including the physical layout of the workplace and the employer’s business judgment. Key factors to that qualitative assessment may include the frequency and duration of tasks, as well as the feasibility and practicability of providing seating. The Court stressed that the nature of the work is the focus of the inquiry, rather than an employee’s individual characteristics, such as his/her physical traits.

Finally, the Court clarified that an employer bears the burden of proving that it cannot comply with the Wage Order because no suitable seating exists. The onus is not on the employee to prove that a suitable seat exists but was not provided.

The Court’s interpretation has important implications for employers in California. This is particularly true for those with employees in retail, manufacturing and other non-office-based settings, whose employees might engage in a wide variety of tasks that, under the Court’s newly announced interpretation, could “reasonably permit sitting.” A careful review of job duties is highly recommended.

The cases are Kilby v. CVS Pharmacy, Inc. and Henderson et al. v. JPMorgan Chase Bank NA, Case No. S215614, consolidated in the Supreme Court of California. The federal cases are Kilby v. CVS Pharmacy, Inc., 9th Cir. No. 12-56130 and Kemah Henderson et al. v. JPMorgan Chase Bank, 9th Cir. No. 13-56095.

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