Karen Kidd May 9, 2016, 3:35pm


SAN FRANCISCO (Legal Newsline) – The California Supreme Court was looking for a middle way when it handed down its recent decision that said employers must provide employees with suitable seating when it is reasonable to do so, a labor attorney, a San Jose attorney says.

"It was a fairly typical decision for the California Supreme Court," said Jasmine Anderson Hopkins & Carley, an associate in Hopkins & Carley’s San Jose office.

"The court has tried to find a middle ground between what the employer wants and what the employee wants. They sought the middle ground in this case and they really did split the baby."

Kilby v. CVS Pharmacy, Inc. originally was a putative class action filed by a cashier and bank teller. Members of the class alleged their employers violated California's Industrial Welfare Commission (IWC) wage order's suitable seating provision by not providing seats. Plaintiffs in the case appealed a federal judge's decision to the U.S. Court of Appeals for the Ninth Circuit.

That court requested clarification from the state's Supreme Court about proper interpretation of state regulations on seating provisions.

The Ninth Circuit's request meant the high court's interest in the case was very narrowly focused. The Ninth Circuit already has certified questions that involve California's wage order requirements that state employers provide suitable seating for employees under certain circumstances.

The issue considered by the Supreme Court was whether, under state wage order regulations, employers must provide employees with suitable seats when the nature of their work reasonably permits the use of seats.

In particular, the Supreme Court considered three questions:

-Whether the nature of the work referred to individual tasks performed throughout the workday, or if it referred to the entire range of an employee's duties during a given day or shift;

-Whether the nature of an employee's work reasonably permits a seat; and

-Whether a prospective plaintiff would have to prove a suitable seat exists if an employer field to provide a seat.

The opinion also covered what courts, in future litigation, should consider when determining whether the nature of an employee's work reasonably permits sitting. The high court ruled that later courts in future litigation should consider the nature of the work rather than an individual employee’s characteristics, while still taking into account what an employer can reasonably expect in setting job duties.

The Supreme Court also found that an employee does not bear the burden of proof that a suitable chair exists. The Supreme Court pointed to the IWC's language stating employers shall provide suitable seats but saying nothing about employees having to show that a particular type of seat would fulfill that requirement.

The opinion also quoted directly from the IWC's wage orders in reference to seating, pointing out how high employees' needs were considered when those wage orders were developed.

"As discussed, the IWC's wage orders were promulgated to provide a minimum level of protection for workers," the opinion said. "The requirement's history reflects a determination by the IWC that 'humane consideration for the welfare of employees requires that they be allowed to sit at their work or between operations when it is feasible for them to do so'.”

The decision means employers will need to be very careful in cases in which they don't want to provide an employee a suitable seat, Anderson said.

"If and when a case goes to litigation, the court is going to look very closely employer's work site," she said. "And the court is going to look very closely at whether a suitable seat can be provided at that work site. Employers need to be ready for that."

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