For decades, the California Wage Orders have required employers to provide employees “with suitable seats when the nature of the work reasonably permits the use of seats.” Following passage of the California Private Attorney General Act of 2004 (“PAGA”), so-called “suitable seating cases” have become a common feature of California’s employment litigation landscape, with plaintiffs’ lawyers filing dozens of cases addressing thousands of employees, all seeking recovery of substantial penalties for failure to comply with the seating requirement. Despite the apparent simplicity of the Wage Order language, lower courts have failed to reach any consensus as to how it should be construed.

The California Supreme Court has now clarified the “suitable seating requirement, furnishing substantial guidance to courts – and to employers – in its April 4, 2016 decision in Kilby v. CVS Pharmacy, Inc., — P.3d —-2016 WL 129610116  (Cal. Supreme Court, April 4, 2016). In Kilby, the California Supreme Court responded to questions posed by the Ninth Circuit Court of Appeals, which had sought its assistance in resolving competing interpretations of the seating requirement argued by the parties in two consolidated appeals.

The Kilby decision furnishes the following guidance:

1) What is the “nature of the work” that should be considered?

• In determining whether or not to provide seating, the employer should focus on the actual tasks performed, or reasonably expected to be performed, by the employee. Job titles or descriptions have limited relevance, since they may or may not reflect the actual work performed.

• Where an employee works in different locations within the workplace, the inquiry should focus on each location where provision of seating may be feasible. The court rejected a “holistic” approach, which would have permitted employers to consider all of the employee’s tasks and responsibilities together.  Instead, employers should consider the tasks to be performed at a particular location in determining whether seating should be provided at that location.

• Tasks performed more frequently or that are longer in duration have greater significance.

• Consideration of the employee’s duties is not limited to physical tasks. For example, the court recognized that an employee’s duty to provide customer service may be considered, since it is “an objective job function comprised of different tasks, e.g., assisting customers with purchases, answering questions, locating inventory, creating a welcoming environment, etc.” An employer’s reasonable expectations regarding customer service – including its view that customer service tasks are best accomplished while standing — may be considered. Such a view must, however, be objectively reasonable – the employer’s “mere preference” is not relevant. The court stressed that employers do not have the “unlimited ability to arbitrarily define certain tasks as “standing” ones.”

2)  How should employers determine when the employee’s work “reasonably permits” sitting?

• For each location where the employee works, the employer should determine 1) whether the tasks can be performed while seated, or require standing; and 2) the feasibility of providing a seat.

• In considering the feasibility of providing a seat, employers may consider such factors as whether providing a seat would unduly interfere with tasks performed while standing; how often the employee would transition from standing to sitting at the location; whether the frequency of the transition would interfere with the employee’s work; and whether seated work would impact the quality and effectiveness of overall job performance.

• Employers may also consider the physical layout of the workspace in determining feasibility. The physical layout is relevant, in that it may play a role in determining the expectations of both the employer and employee with respect to job duties.  However, “[a]n employer may not unreasonably design a workspace to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks.”

3)  Who has the burden to show that suitable seating is available?

• In answering this question, the court referred to the “unambiguous” language of the Wage Order stating that employees “shall be provided with suitable seats.” Where an employer seeks to be excused from this requirement because it is not feasible to provide suitable seating, the employer bears the burden of proof.

Implications

While the Supreme Court’s decision leaves room for further debate and interpretation, it resolved the most vexing issues dividing the lower courts in seating litigation.  California employers should undertake a careful compliance review, in light of the guidance furnished in Kilby. The stakes are high. Under PAGA, a plaintiff could seek recovery of penalties on behalf of all aggrieved employees, consisting of $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. As the Ninth Circuit panel stated when it referred Kilby to the California Supreme Court, a “conservative estimate” of the damages in the cases before it is “in the tens of millions of dollars.” Employers are well-advised to be proactive in ensuring that they are providing the “suitable seating” required under the Wage Orders, as construed and clarified in Kilby.