Employment Law Daily California Supreme Court takes stand on suitable seating provisions
Thursday, April 7, 2016

California Supreme Court takes stand on suitable seating provisions

By Lisa Milam-Perez, J.D. Offering much-needed guidance to employers as well as to the Ninth Circuit (per its request), the California Supreme Court finally grappled with the meaning of California’s “suitable seating” requirement, which mandates that employees be given seating at work if their duties can be performed sitting down. Eschewing the “holistic” approach encouraged by the employer, the state high court unanimously concluded that “the nature of the work,” for purposes of the wage order in question, means the specific tasks performed at the given location for which a seat is desired. Also, whether that work “reasonably permits” an employee to be seated depends on the totality of the circumstances. Finally, if the nature of an employee’s work does, in fact, allow for seating, the employer bears the burden of showing that no suitable seating is available (Kilby v. CVS Pharmacy, Inc., April 4, 2016, Corrigan, C.). Consolidated cases. The supreme court’s attention to Industrial Welfare Commission (IWC) Wage Order 7-2001, the state’s “suitable seating” requirement, was necessitated by a wave of seating lawsuits that seemed to have sprung up out of nowhere a few years back—class actions, of course, several of which had made their way to the Ninth Circuit. The appeals court was stymied by a pair of consolidated cases. In the first, a federal district court disposed of a CVS cashier’s claims that the retailer violated the wage order. Dismissing her putative class action against CVS (which operates 850 retail pharmacy stores in California), the lower court held the nature of the cashier’s duties did not reasonably permit her to use a seat, so she was not covered by the provision. The second case was brought by bank tellers employed by JPMorgan Chase. After reviewing the small but growing body of cases addressing the feasibility of resolving suitable seating claims as a class, the district court had declined to certify a putative class action alleging the banking giant wrongly denied them seating at work. Given the numerous differences in their job duties and in the layout of bank branches, the tellers simply could not establish that they had enough in common to efficiently address their claims on a classwide basis, the lower court reasoned. Concluding that the language of Section 14 of the wage order allowed for more than one reasonable construction and its interpretation could have a dramatic impact on public policy in California, the Ninth Circuit certified questions to the California Supreme Court regarding whether the phrase “nature of the work,” as set forth in that clause, refers to individual tasks or should be construed holistically, evaluating the entire range of an employee’s duties. The appeals court also asked: When determining whether the nature of work “reasonably permits” the use of a seat, should the court consider the employer’s business judgment, layout of the workplace, or physical characteristics of the employee; and, does the employee need to prove what could constitute “suitable seats” to show the employer violated the provision? “Nature of the work.” 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, the supreme court answered. If the tasks being performed by an employee at a given location reasonably permit sitting, and sitting would not interfere with tasks that may require standing, a seat is called for. The court rejected the employer’s favored approach of looking at the employee’s job as a whole and the full range of duties performed over the course of his or her entire shift throughout the jobsite, in order to determine whether the nature of the work can be performed while seated. Too broad. The approach urged by the employers would require weighing all of the employee’s “standing” tasks against all of the employee’s “sitting” tasks, then classifying the job as a “sitting” job (in which case a seat would be provided) or a standing job, in which case a seat would only be afforded while the employee was not engaged in active duties as mandated by section 14(B) of Wage Orders No. 4-2001 and No. 7-2001. But this equation ignores the duration of the various tasks the employee performs during his or her shift, along with where and how frequently they are performed. “This all-or-nothing approach could deprive an employee of a seat because most of his job duties are classified as ‘standing’ tasks, even though the duration, frequency, and location of the employee’s most common tasks would make seated work feasible while performing them,” the court wrote. “There 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.” What’s more, it would be inconsistent with the underlying aims of the seating requirement, which was enacted out of “humane consideration for the welfare of employees [that] requires that they be allowed to sit at their work or between operations when it is feasible for them to do so.” Also problematic: This approach could mean different seating requirements for employees with different duties and job descriptions while they perform the same work. The court offered the example of the stock person who occasionally works the register versus the full-time cashier. The employers’ proposed method would have one of these workers seated, the other standing, while performing the same task. Too narrow. But the court also rejected the employees’ attempt to define “nature of the work” based on a task-by-task evaluation of whether a single function can be realistically performed sitting down. Noting that the wage order had been amended to include the word “reasonably” before the phrase “permits the use of seats,” the court said the plaintiffs’ proposed approach failed to take into account the flexibility envisioned by this reasonableness standard, including whether being seated would interfere with other standing tasks, or the quality of one’s overall work. “The reasonableness standard, and its attendant flexibility, was intended to balance an employee’s need for a seat with an employer’s considerations of practicability and feasibility.” Just right. The supreme court found middle ground. When evaluating whether the nature of an employee’s work reasonably permits the use of seats, courts are to consider the “subsets” of the employee’s “total tasks and duties by location” (in the cases at hand, the checkout line or teller window) and whether it is feasible to perform “each set of location-specific tasks” sitting down. The focus is to be on “actual work done and tasks grouped by their location,” the court advised. “Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.” “Reasonably permits.” As for the “analytically distinct” but “necessarily intertwined” question whether the nature of the work “reasonably permits” use of a seat, the high court called for an objective analysis of the totality of the circumstances, an approach long-used by the California IWC and Department of Labor Standards Enforcement. The inquiry starts with an analysis of the relevant tasks, grouped by location, and a consideration of whether they can be performed while seated. Next is to balance this assessment against “feasibility” considerations, such as “whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance.” This is no “rigid quantitative analysis,” the court said—no mere counting of tasks and calculating the corresponding time spent performing them. Rather, it calls for a qualitative evaluation of the relevant factors, and the weight given any one factor will vary by circumstances. The court then addressed the particular factors set forth in the Ninth Circuit’s certified questions: Business judgment. Naturally, CVS and Chase contended that deference was due their sense that standing provides for better customer service, or at least the impression of it. The employees countered that business judgment should play no part and that “reasonableness” depends on the objective requirements of the task for which seating is sought. The sweet spot was somewhere in between, the court explained. In this sense, “business judgment” does not mean an employer’s mere preference that particular tasks be performed while standing. The standard is an objective one, but it can be measured in part by the employer’s own evaluation of the quality and effectiveness of overall job performance when employees are seated relative to standing, cognizant of the employer’s reasonable expectations regarding customer service and its right to prescribe job duties. However, this objective inquiry also must unfold in the context of “the overall aims of the regulatory scheme, which has always been employee protection.” That means employers don’t have the unfettered right to arbitrarily define certain tasks as “standing” ones, thus undermining the wage order’s employee-protective aims. Physical layout. The employees said that the current physical configuration of an employee’s workspace should have no bearing on whether their work reasonably permitted the use of seats. The employers said that workspace layout was a relevant consideration. The high court said that, to the extent physical layout informs the expectations of both employer and employee with respect to job duties, it is relevant to the totality of the circumstances inquiry. Again, though, mere employer preference is not enough. Cognizant that the wage order was enacted out of concern for employee welfare, not to promulgate engineering-based standards, the court cautioned employers that they cannot “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.” Physical differences between employees. CVS argued that physical differences among employees should be factored into the determination whether employees could uniformly perform their duties with a standardized type and size of seat. Agreeing with the employees, the supreme court saw no rational reason, and no basis in the wage order, for conditioning an employee’s right to chair on his or her physical characteristics. The wage order “requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does.” The court was careful to note, though, that the cases at hand presented no issue “regarding any accommodations that may be required for particular workers under other provisions.” Burden on employer. Finally, the supreme court quickly disposed of the notion, furthered by Chase, that an employee left seat-less must prove that a suitable seat is actually available in order to establish a violation of the seating provision. Chase argued to no avail that the “suitable seat” requirement was an independent element of the regulation. The court disagreed, noting that the wage order unambiguously states that employees “shall be provided with suitable seats,” and there is no other language therein to suggest that an employee must additionally show a particular type of seat would fulfill that requirement. As such, the court made it clear that, “nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.”

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