California Supreme Court Interprets Suitable Seating Requirements
Today, the California Supreme Court provided guidance that had been requested by the Ninth Circuit regarding California’s suitable seating requirements in two different cases—Kilby v. CVS Pharmacy and Henderson v. JPMorgan Chase Bank (both pending before the Ninth Circuit). The Ninth Circuit certified the following questions to the California Supreme Court relating to the California Wage Order provision (Section 14(A) of various Wage Orders) stating that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats:”
- 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?
- 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?
- 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?
The California Supreme Court answered those questions as follows:
- 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.
- 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.
- 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.
The Factual Setting of the Two Cases
In the CVS case, the plaintiff was a customer service representative whose 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 class action lawsuit against CVS for not providing seats to its customer service representatives. The district court granted summary judgment in favor of CVS, reasoning that the “nature of the work” means the entire range of the employee’s duties and that, because it was undisputed that many of the employee’s duties required standing, the nature of the work as a whole did not reasonably permit the use of seats. The plaintiff appealed the ruling to the Ninth Circuit.
In the JPMorgan Chase Bank case, the plaintiffs were bank tellers who filed a class action against the bank for failure to provide suitable seating to them. The plaintiffs had duties associated with their teller stations, including accepting deposits, cashing checks, and handling withdrawals. They also had duties away from their stations, such as escorting customers to safety deposit boxes, working at the drive-up teller window, and making sure 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 class certification. Plaintiffs appealed that decision to the Ninth Circuit.
To assist its resolution of the issues in these two cases, the Ninth Circuit certified questions to the California Supreme Court relating to the proper interpretation of the suitable seating provision of California’s Wage Orders.
The “Nature of the Work”
The first question the California Supreme Court was called upon to decide was whether the “nature of the work” refers to discrete work tasks or to the entire range of an employee’s duties performed in a shift. The plaintiffs argued that it refers to each discrete task (and that if the performance of any task reasonably permitted the use of a seat, then a seat needed to be provided). Conversely, the defendants argued that the “nature of the work” refers to the entire range of the employee’s job duties. The California Supreme Court rejected both arguments and adopted a middle ground approach, holding that the “nature of the work” refers to the tasks performed “at a given location.” According to the Court, “When evaluating whether the ‘nature of the work reasonably permits the use of seats,’ courts must examine subsets of an employee‟s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location specific tasks while seated. Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.” “An employee may be entitled to a seat to perform tasks at a particular location even if his job duties include other standing tasks, so long as provision of a seat would not interfere with performance of standing tasks. At the same time, consideration of all the actual tasks performed at a particular location would allow the court to consider the relationship between the standing and sitting tasks done there, the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transition between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance.”
The Supreme Court emphasized that even where the nature of the work requires standing, this does not completely relieve an employer of the obligation to provide seating. This is because a separate provision of the Wage Orders, Section 14(B), states that when “employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.” Thus, according to the Supreme Court, if an employee’s tasks at a discrete location make sitting feasible, then a seat must be provided for the employee’s use while working under Section 14(A) of the Wage Orders. However, if an employee’s tasks at a discrete location require standing, then suitable seats must be provided within “reasonable proximity” for an employee’s use while not actively engaged in work tasks (meaning during “lulls in operations” when the employee is not required to perform any tasks) under Section 14(B).
“Reasonably Permits” the Use of Seats
The second question the California Supreme Court was called upon to decide was what role the employer’s business judgment and the physical layout of the work space play in determining whether the nature of the work “reasonably permits” the use of seats. Plaintiffs argued that the employer’s business judgment and the physical layout of the work space are irrelevant to the inquiry, and the defendant-employers argued that both were relevant factors to consider. The California Supreme Court agreed that both were relevant factors, but that the ultimate test is an objective one that must be based on the “totality of the circumstances.” Thus, the mere fact that an employer prefers employees in a customer service role to stand (based on the employer’s belief that it is more welcoming to employees) does not alone mean that the nature of the work requires standing. However, the employer’s judgment is entitled to consideration. “An objective inquiry properly takes into account an employer’s reasonable expectations regarding customer service and acknowledges an employer’s role in setting job duties. It also takes into account any evidence submitted by the parties bearing on an employer’s view that an objective job duty is best accomplished standing. It protects employees because it does not allow employers unlimited ability to arbitrarily define certain tasks as ‘standing’ ones, undermining the protective purpose of the wage order.”
On the issue of whether the physical layout of the workplace may be considered, the Court stated:
“We conclude the physical layout of a workspace may be relevant in the totality of the circumstances inquiry. As discussed, an employer’s expectations define the duties of an employee. Those duties are usually discharged in a particular physical space owned or rented by the employer. To look only at an employee’s physical tasks in the abstract, as plaintiffs suggest, may ignore an important aspect of what both employer and employee believe a job entails. A workspace’s physical layout may inform the expectations of both the employer and employee with respect to job duties. To the extent it does, the physical workspace would be relevant in defining an employee’s job duties and should be accounted for in the totality of the circumstances inquiry. On the other hand, just as an employer’s mere preference for standing cannot constitute a relevant ‘business judgment’ requiring deference, an employer may not unreasonably design a workspace to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks.”
Consideration of Physical Differences Among Employees?
CVS argued that physical differences among employees must be considered in assessing whether employees can uniformly perform their duties with a standardized type and size of seat. The Court swiftly rejected this argument, holding that physical differences among employees are irrelevant. As the Court reasoned, Section 14(A) “requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does.”
Burden of Proof
The last question the Court was called upon to decide was whether, as part of his/her case, a plaintiff must prove not only that the nature of the work reasonably permitted sitting, but also that a suitable seat existed but was not provided. The Court held that this was not part of the plaintiff’s burden of proof: “Section 14(A) unambiguously states employees ‘shall be provided with suitable seats.’ There is no language suggesting that an employee must additionally show a particular type of seat would fulfill that requirement. An employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists.”
The California Supreme Court’s decision provides some guidance regarding the parameters of California’s seating requirements, but certainly does not provide any bright line test for employers to apply with any confidence that it will protect them against lawsuits alleging violation of the suitable seating provision of California’s Wage Orders. The objective “totality of the circumstances” approach adopted by the Court means that any time an employer determines that job duties require standing, a judge or jury could second-guess that decision and “objectively” view the circumstances differently. Some aspects of the decision (e.g. the Court's rejection of individual employee characteristics as being relevant) are also unhelpful for employers defending against class certification in this type of case. However, class certification remains subject to challenge, given the Court's prescribed focus on the mix of an employee’s job duties at any given location, including the relative time spent on different tasks – which certainly has the potential to vary from individual employee to employee. In any event, employers that have employees whose jobs typically involve standing should review this new guidance to assess their compliance with the suitable seating provisions of applicable wage orders.