Legal Update: Breaking Down the CA Supreme Court “Suitable Seats” Ruling 21:18, June 24, 2016

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Legal Update: Breaking Down the CA Supreme Court “Suitable Seats” Ruling

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On April 4, 2016, the California Supreme Court issued its long-awaited interpretation of the California law requiring “suitable seats” for most employees.

The “suitable seats” regulation has been in the California Wage Orders since at least 1980 (and can be traced back to a 1911 regulation requiring the mercantile industry to “provide suitable seats for all female employees”). Still, the first court decisions involving the rule did not appear until 2010.

The case reached the state’s highest court after CVS cashiers and JPMorgan tellers lost suitable seating lawsuits and appealed to the Ninth Circuit Court of Appeals. That court did not decide the case, but formally requested the California Supreme Court to interpret the contentious terms “nature of the work” and “reasonably permits” in Section 14(A) of California Wage Orders 4 and 7: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The federal court also asked for a determination of whether employees or employers must prove a lack of suitable seats in a lawsuit. The California Supreme Court agreed to interpret the law and explain the state seating regulation by answering these questions:
1. 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?
2. When determining whether the nature of the work “reasonably permits” use of a seat [should courts and employers consider] business judgment, the physical layout of the workplace, and the characteristics of [the employee]?
3. If an employer has not provided any seat, must [an employee] prove a suitable seat is available in order to show the employer has violated the seating provision?

Here are the Court’s answers:
1. 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.
2. Whether a job “reasonably permits” a seat is 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.
3. 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.

Below is a further explanation of the Supreme Court’s interpretation of an employer’s obligation to provide “suitable seats” to its employees.

Nature of the Work

The “nature of the work” refers to whether an employee’s actual or expected job tasks performed at a given location can be performed sitting down without interfering with the employee’s other tasks. An employer cannot designate an entire job as a “sitting job” or a “standing job” based on abstract, holistic considerations (such as whether more tasks in an employee’s job require sitting or standing).

The Court rejected an “all-or-nothing” holistic approach because it could deprive employees with more standing tasks of seats when feasible to perform non-standing tasks, and could result in different seating requirements for employees with different job descriptions while they perform the same work (e.g., a shelf stocker who occasionally assists at a cash register and a cashier who occasionally stocks shelves).

The “nature of the work” in suitable seating cases will now turn on the frequency and duration of actual and expected tasks performed at a particular location, and whether sitting (or frequent transitions between sitting and standing) “would unreasonably interfere with the quality and effectiveness of overall job performance.”

Reasonably Permits

To determine whether a job task “reasonably permits” an employee to sit without harming job performance, the Court found that an employer needs to look at a number of factors. How often tasks are performed, how long they take to perform, the physical layout of a work space, as well as the “feasibility and practicability of providing seating, may play a role in the ultimate conclusion” as to whether suitable seating is legally required.

Although business judgment and physical characteristics of the facility may play a role in deciding suitability of seating, employers may not make seating decisions based simply on preference. When evaluating the quality and effectiveness of an employee’s job performance, an employer must consider employee protection as required by the wage order regulations.

Employers may not take employee’s individual characteristics into consideration when determining whether seats are suitable for certain tasks unless they are otherwise required to accommodate the employee (for example, under the Americans with Disabilities Act).

Employers Must Prove No Suitable Seats

Finally, the Court concluded that if the nature of the work reasonably permits the use of seats, an employer must provide seating unless “no suitable seating exists.”
The case now returns to the Ninth Circuit Court of Appeals to determine whether CVS and JPMorgan must provide suitable seats to its employees based on the California Supreme Court’s interpretation of section 14(A). [Kilby v. CVS Pharmacy (CA 2016) no. S215614]

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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