April 21, 2016
Compliance Matters


The California Industrial Welfare Commission Wage Orders contain a number of requirements governing employee wages and working conditions which must be followed. Section 14 of the Wage Orders contains the so-called "suitable seating" requirement which has two separate, but related, mandates:
  • Section 14(A): "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."
  • Section 14 (B): "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".
Read together, these two provisions raise a number of compliance questions which the California Supreme Court recently answered in a case called Kilby v. CVS Pharmacy, Inc. This issue of Compliance matters focuses upon the impact of the Kilby decision on California businesses.

The Kilby Decision

The Kilby decision arose out of two class action lawsuits filed in the federal Ninth Circuit U.S. Court of Appeal. The first case, Kilby, involved CVS customer service representatives who spend the majority of their time operating a cash register and interacting with customers.  In addition, they had other duties such as restocking shelves and store maintenance. The second case, Henderson v. JP Morgan Chase Bank NA, involved bank tellers who are required to stand all day.

In both cases, the plaintiffs sought to impose penalties against their employers because they were not provided with seats while working in locations that required standing for long periods of time.  Because of the novel issues presented by both cases, and the broad impact any decision would have on both workers and employers, the Ninth Circuit took the unusual step of asking the California Supreme Court to opine on how the seating provisions in the Wage Orders are to be interpreted. The California Supreme Court obliged and answered three important questions:
            (1) Does the phrase "nature of the work" in Section 14 (A) 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?  Siding with the employees on this question, the Supreme Court explained that the phrase "nature of the work" in Section 14 (A) refers to tasks performed at a particular location where an employee is claiming a right to a suitable seat, i.e. at a cash register or a teller window, instead of an evaluation of all the tasks an employee performs throughout the day at different locations in the workplace. 

The Court went on to explain that when evaluating whether the nature of the work reasonably permits the use of seats, courts must examine whether it is feasible for an employee to perform each set of location-specific tasks while seated. In doing so, the Supreme Court instructed that courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations or job titles, with descriptions that may or may not reflect the actual work performed. Further, tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.

Thus, it is entirely possible that an employee may be legally entitled to a seat to perform tasks at a particular location, even though the job duties include other standing tasks, so long as providing a seat would not interfere with the performance of standing tasks. Consideration of all the actual tasks performed at a particular location would allow the court to evaluate 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, with the frequency of transition between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance.

Section 14 (B) states that "when employees are not engaged in 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". According to the Court, this provision applies during "lulls in operation" when an employee, while still on the job, is not actively engaged in any duties.

Taking the two provisions together, the Supreme Court instructed that if an employee's actual tasks at a discreet location makes seated work feasible, the employee is entitled to a seat under section 14 (A) while working there. However, if other job duties take the employee to a different location within the workplace where the employee must perform standing-only tasks, the employee nevertheless would be entitled to access to a seat under section 14 (B) during any "lulls in operation".
            (2) The Kilby decision addressed how to determine whether the nature of the work "reasonably permits" use of a seat. The "factors" employers should consider include the employer's "business judgment," regarding matters such as the reasonable expectations regarding customer service, whether providing a seat would unduly interfere with other standing tasks, whether seated work would impact the quality and effectiveness of overall job performance and the physical layout of a workplace. In regard to this last factor (physical layout), the Court cautioned that employers must evaluate whether the physical layout may reasonably be changed to accommodate a seat.

Finally, the Court cautioned employers that whether an employee is entitled to a seat under section 14 (A) depends on the "totality of the circumstances". This inquiry is not a rigid quantitative analysis based merely upon the counting of tasks or the amount of time spent performing them. Instead, it involves a qualitative assessment of all relevant factors for each location where seating may be sought.

The employers argued that their judgment that employees provide better customer service while standing, or at least that employees are perceived by customers to provide better service, should be controlling. The Court agreed that this was important, but cautioned that while providing a certain level of customer service is something that an employer may reasonably expect, it does not encompass an employer's mere preference for particular tasks to be performed while standing. Rather, the standard is an objective one that takes into account any evidence submitted by the parties bearing on an employer's view that a particular job duty is best accomplished standing. It does not allow employers an unlimited ability to arbitrarily define certain tasks as "standing" ones, undermining the protective purpose of the Wage Order.
            (3) The Court addressed the "burden of proof" in one of these cases. Since the furnishing of a seat is required "where the nature of the work reasonably permits the use of seats", the burden will fall on the employer to prove otherwise. If an employer argues that there is no suitable seat available at a particular location, the employer must show that "compliance is infeasible because no suitable seating exists."

What This Means for Employers?

Because the Kilby court set forth several "factors" to determine when a suitable seat must be provided, a lot of ambiguity remains about how particular suitable-seating cases will be decided.It is likely that new lawsuits will be filed based on the Kilby decision, and   employers should be mindful that courts will look very critically at any defense that is used by employers who claim it was "infeasible" to provide a suitable seat.

In view of the court's ruling, employers must take great care to analyze each location where standing work is performed to assess whether it can meet its newly defined burden. Given the large exposure in state mandated penalties and attorney's fees, it is best to begin this analysis with the idea that a seat will be required in almost all cases, and that not providing a seat is the exception, not the rule. 

The Kilby court appeared particularly hostile to the idea that simply because employees in certain jobs (e.g. bank tellers, cashiers, front desk agents, etc.) are traditionally required to stand excuses employers from providing seats. Rather than examine what has traditionally been done, the Court has raised the bar for employers considerably. Employers will now have to prove that the nature of the work will not permit a seat, which is a very difficult standard to meet.

What Employers Should Do

Employers should immediately review what job duties are performed by employees at a work location while standing, and asses whether, in light of Kilby, seats should be provided. If the employer determines that a seat cannot be provided, employers must be prepared to demonstrate that compliance is infeasible because no suitable seating exists.

If you have any questions, please call your firm contact at (818) 508-3700 or visit us online at  www.brgslaw.com.

Richard Rosenberg
Katherine Hren
Rami Yomtov
Ballard Rosenberg Golper & Savitt, LLP

500 N. Brand Blvd.
Twentieth Floor
Glendale, CA 91203
(818) 508-3700

57 West 38th St.
Ninth Floor
New York, NY 10018
Ken Ballard: 
(212) 857-0244

6135 Park Drive South
Suite 510
Charlotte, NC 28210
Matthew Wakefield:
(704) 846-2143 


Like us on Facebook  Follow us on Twitter  View our profile on LinkedIn
Join Our Mailing List