New Teeth For California's 'Suitable Seating' Law

Connie Chan, Associate and Michael Rubin, Partner, with Altshuler Berzon, LLP

On April 4, the California Supreme Court unanimously decided Kilby v. CVS, which adopted a very worker-friendly construction of the state’s century-old “suitable seating law,” and will help ensure that, going forward, seating cases will proceed under California's Private Attorney General Act (PAGA) on a broad class-wide or representative action basis.

Since 1911, California law has guaranteed seats to employees “when the nature of the work reasonably permits the use of seats” (although until 1973, only women were protected).  See, e.g., Wage Order 7-2001 § 14(A).  This basic protection reflects the commonsense and humane proposition that workers should not be forced to stand on their feet all day if their job duties can reasonably be performed from a seated position.

In Kilby, the California Supreme Court answered a series of statutory-construction questions certified by the Ninth Circuit in two appeals concerning the meaning of that deceptively simple language, holding that the law requires an objective inquiry, consistent with its worker-protective purposes, into whether each separate grouping of job tasks can be performed while seated.

Defendants CVS and JPMorgan Chase argued that the suitable seating law could not be enforced on a class-wide or representative action basis because most workers perform a combination of job duties, only some of which permit seating, so each worker’s “job as a whole,” viewed “holistically,” would necessarily involve a different combination of tasks than any other worker’s job. The California Supreme Court unanimously rejected this construction, emphasizing that the worker-protective purpose of the Wage Order’s seating requirement requires an objective inquiry into each discrete set of tasks performed, and explaining that “[t]here is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.”

The Court held that when determining whether an employee is entitled to a suitable seat, “courts must examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.”

The Court also clarified that an employee’s entitlement to seating must be based on an objective inquiry into factors “such as the frequency and duration of tasks, as well as the feasibility and practicability of providing seating,” not on an employer’s “mere preference that particular tasks be performed while standing.”

The Supreme Court’s construction has far-reaching ramifications for all California employees in the various industries covered by the 16 Wage Orders that guarantee suitable seating. Because it makes no difference what tasks an employee performs away from the workstation, employers can no longer defeat class certification by contending that each employee’s “other” duties differ day by day. And, by limiting the seating inquiry to objective considerations, the Court has stripped employers of the defense that they prefer that their employees stand, when the tasks at issue could physically be performed while seated.

For the dozen or so seating cases currently pending in state and federal courts, the Supreme Court’s decision dramatically increases the likelihood of class-wide resolution. For California workplaces more generally, the decision makes it far more likely that employers – particularly retail employers -- will begin to provide suitable seating to their employees, given the relatively inexpensive cost of providing seats at existing workstations compared to the high cost of litigation, the steep PAGA penalties, and the fee-shifting obligations to plaintiffs’ counsel.

The Court’s ruling also provides further evidence that PAGA works. As pointed out by the U.S. and California Chambers of Commerce in their amicus brief in support of CVS and Chase, from 1911 until 2004 there was almost no Division of Labor Standards Enforcement (DLSE) enforcement of California’s seating provisions. After PAGA’s enactment in 2003, several dozen seating cases were filed. If not for the private right of action created by PAGA, these cases could not have been brought, the employers’ violations would never have been remedied (as they likely will be as a result of the Court’s ruling), and employers would have had no economic incentive to begin complying with California’s long-overlooked suitable seating law.

The case is Kilby v. CVS Pharmacy, Inc., S215614. The workers are represented by Michael Rubin and Connie K. Chan of Altshuler Berzon LLP, James F. Clapp of Clapp Legal APC, Matthew Righetti of Righetti Glugoski PC, and Kevin J. McInerney.