Ninth Circuit Asks California Supreme Court to Clarify Suitable Seating Requirements

Last week the Ninth Circuit Court of Appeals asked the California Supreme Court to clarify how the state law requiring employers to provide workers with “suitable seating” should be applied.

California’s Industrial Welfare Commission wage orders require most employers to provide their employees with suitable seating “when the nature of the work reasonably permits the use of seats.”  This has been the law for decades, but the suitable seating requirement was little noticed until after the enactment of the California Labor Code Private Attorneys General Act of 2004 (the “PAGA”).  This law allows employees to sue their employers on behalf of themselves and other “aggrieved employees” for violation of labor laws, and allows prevailing plaintiffs to collect civil penalties that previously were available only in administrative enforcement actions brought by the state.  Under the PAGA, the civil penalty for violation of the suitable seating requirement is $100 for each aggrieved employee per pay period for the initial violation, and $200 for each aggrieved employee per pay period for each subsequent violation.

The two cases that triggered the Ninth Circuit’s request are Kilby v. CVS Pharmacy, Inc., 2013 BL 359084, 9th Cir., No. 12-56130; and Henderson v. JPMorgan Chase Bank NA, 2013 BL 359084, 9th Cir., No. 13-56095.

In Kilby, Nykeya Kilby brought a putative class action on behalf of a class of current and former CVS clerk/cashiers.  She alleged that during her employment at CVS she spent around 90 percent of her working time operating a cash register.  CVS has a policy of not providing seats to its cashiers because, in the company’s judgment, standing while operating the cash register promotes excellent customer service.  The district court found that the “nature of the work” performed must be considered, and that courts should consider an employer’s “business judgment” when considering the nature of the work.  The district court denied class certification because of differences in the duties of CVS cashiers, and granted summary judgment to CVS because many of Kilby’s duties required her to stand, CVS expects its cashiers to stand, and she knew of this requirement when she took the job.

In Henderson, four Chase bank tellers brought a putative class action on behalf of current and former Chase tellers.  They alleged they spent most of their working time standing at their teller stations servicing bank customers, but also performed a variety of additional duties away from their teller stations.  The district court denied class certification after finding that the nature of a teller’s work could vary based on the different tasks the teller performs away from the teller station, the bank at which the teller works, and which shift the teller works.

In both cases the plaintiffs appealed to the Ninth Circuit, contending that the district courts misapplied the suitable seating law.  In their view, if an employee is engaged in a task that can objectively be performed while seated, the employer must provide a suitable seat, and neither the employee’s other tasks, nor the employer’s business judgment, should affect the court’s determination of whether the nature of the work reasonably permits the use of seats.

The Ninth Circuit certified three questions to the California Supreme Court.  First, does the phrase “nature of the work” refer to individual tasks an employee performs during the day, or should it be construed “holistically” to cover the entire range of an employee’s duties?  Second, should an employer’s business judgment, the physical layout of the workplace, or the physical characteristics of the employee be considered when determining whether the nature of the work “reasonably permits” the use of a seat?  And third, does a plaintiff need to prove what could constitute “suitable seats” to show the employer has violated the law?

In certifying its questions to the California Supreme Court, the Ninth Circuit cited the potentially “dramatic” impact of the suitable seating law on California employers, stating that “tens of millions of dollars” are at stake in the Kilby and Henderson cases alone, depending on how the law is interpreted.  The Ninth Circuit wrote, “A definitive decision from the California Supreme Court would avert the potential uncertainty of federal courts and state courts adopting different interpretations . . . and would provide businesses in California with clear guidance on how to comply with the Wage Orders.”

The California Supreme Court could accept the Ninth Circuit’s invitation to clarify the law, or it could decline the request, leaving the responsibility for interpreting and applying the law with individual trial courts.

Aaron Buckley – Paul, Plevin, Sullivan & Connaughton LLP – San Diego, CA

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