In April, in Kilby v. CVS Pharmacy, Inc., the California Supreme Court weighed in, at the request of the Ninth Circuit, on elements of two California Wage Orders that have, until now, received relatively little notice, and have escaped much judicial interpretation—the requirement that seating is to be made available to employees “when the nature of the work reasonably permits the use of seats.” (Emphasis added.) Unfortunately, the Court’s decision raises at least as many questions as it answers.
Before the Court were two main questions, both concerning the seating requirements of California Wage Orders: what does “nature of the work” mean when determining if employee seating is required, and, in this same context, what does “reasonably permits” mean?
The defendants, CVS Pharmacy (in a class action where the named plaintiff was a customer service representative) and JP Morgan Chase Bank (in a class action where the named plaintiffs were bank tellers), argued that “nature of the work” required a “holistic” analysis, where one basically could add up the overall duties and tasks of an employee, and consider the overall position and title, and determine whether, all things considered, the provision of seating was required.
The Supreme Court sided, not surprisingly, with the position of the California Department of Labor Standards and Enforcement in its amicus brief. Essentially, the Court said that you need to look at each discrete task and determine whether the nature of each task permits the use of seating. If, for example, a retail employee spends 90 percent of her working time stocking merchandise and 10 percent of her time ringing up sales at a cash register, and if we further assume that the “totality of the circumstances” (discussed more below) makes clear that seating is reasonable for the cashier work, but not for the stocking work, then the employer would need to provide seating for the time that the employee is performing cashier duties—regardless of the employee’s title (e.g., “stockperson” ), the fact that the majority of her tasks did not reasonably permit seating, or otherwise.
This interpretation of “nature of the work” naturally flows into the adjoining language of the Wage Orders—“when the nature of the work reasonably permits.” (Emphasis added.) And this is the part of the decision likely to cause California employers significant angst. The Court basically said that whether the nature of the work “reasonably permits” an employee to sit is based upon the “totality of the circumstances,”—in other words, a determination of what is reasonable must be based upon all of the material facts. But the Court did not provide any useful examples of what this might look like in the real world. The Court did say that the business judgment of the employer, as well as the physical layout of the workspace, were factors to be considered when looking at this “totality of the circumstances,” but no single factor was dispositive. (Notably, the defendant-employers argued that the test should be whether an employer’s business judgment was “legitimate” and not “pretextual,” harkening to the standard for employment discrimination cases under the California Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964, but this suggestion received little attention from, or discussion by, the Court.)
Takeaways: this decision is most certainly a mixed bag. On the one hand, the clarification that “nature of the work” refers to discrete tasks, and not an overall, holistic analysis provides useful guidance. Employers will have the burden to assess and analyze their employee positions to determine what “work” (tasks) merit seating. But for many such tasks, the nature of the task itself (such as cashiering versus stocking) will provide a guidepost, if not a bright line. The only bright line appears to be that the burden of proof will be on the employer—in other words, it is an employer’s burden to prove that compliance with the seating requirement is “infeasible because no suitable seating exists.”
The real conundrum for employers is that their judgment, i.e., what is “reasonable” in the totality of the circumstances, will almost certainly be second guessed by judges and juries, often in the context of class actions, and such judgment as to whether employee seating is reasonably permissible is one factor among many, and is entitled to no deference. On a related matter, the fact that the physical layout of a workspace is itself not dispositive further complicates the reasonableness analysis: it leaves the door open, for example, that a reconfiguration or enlargement of a work area, such as an enlargement of a cashier area to accommodate seating, may be “reasonable” under the law.
Also, a less discussed, but still impactful part of the Court’s decision was its discussion of the Wage Orders’ language that “[w]hen 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 and employees shall be permitted to use such seats when it does not interfere with the performance of their duties” —in other words, that when there are “lulls in operation” and such an employee is not “actively engaged in any duties,” seating must be provided. It appears that the same totality-of-circumstances and reasonableness analysis would apply to an employer’s determination of whether an employee was or was not “actively engaged” in duties. Is a customer service employee in a retail storefront actively engaged in the duty of providing customer service (including, for example, being welcoming) when there are no customers in the store, but where the store interior and the employee are visible from passersby? This would seem to rest, in part, on an employer’s business judgment, and such judgment, under this decision, is not entitled to deference, but is only one factor among many.
Future decisions from the California courts will hopefully provide more structure and guidance to employers’ “reasonableness” analysis. Until then, in homage to Auguste Rodin’s famous “Thinking Man” sculpture, employers and human resources professionals may want to put their heads in their hands and think…while sitting, of course.