On April 4, 2016, the California Supreme Court decided Kilby v. CVS Pharmacy, Inc. [PDF], a long‑awaited decision clarifying the Industrial Welfare Commission’s (IWC) “suitable seating” requirement.  The requirement is found in the IWC wage orders.  Section 14(A) of nearly all the wage orders states that: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Section 14(B) states that: “When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work areas and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

As a result of two appeals, one on behalf of CVS cashiers and the other on behalf of JPMorgan bank tellers, the Court clarified that employers must provide seats if tasks performed at a given location can be done while sitting and would not interfere with any other tasks that require standing.

Leading up to the decision, the defendants argued that examining when the “nature of the work reasonably permitted the use of a seat” required a “holistic” consideration of an employee’s job (i.e. an examination of all of the employee’s tasks and duties throughout a shift). Plaintiffs argued for a task-by-task evaluation of whether a single task may feasibly be performed seated.  The Court rejected both views, instead meeting the parties in the middle.  The Court called for an examination of the employee’s tasks and duties by location, frequency, and duration, stating: “if an employee’s actual tasks at a discrete location make seated work feasible, he is entitled to a seat under section 14(A) while working there,” however, “if other job duties take him to a different location where he must perform standing tasks, he would be entitled to a seat under 14(B) during ‘lulls in operation.’”

The Court further stated that an objective determination based on the totality of the circumstances is necessary when evaluating whether an employee’s work “reasonably permits” the use of a seat. This “simply recognizes that numerous factors, such as the frequency and duration of tasks, as well as the feasibility and practicability of providing seating, may play a role in the ultimate conclusion.” The Court addressed three factors identified on appeal, finding that an employer’s business judgment and the physical layout may be relevant in the totality of the circumstances inquiry, but that they are not dispositive.  It did find that individual characteristics, such as physical differences between employees, are not appropriate factors to consider in the suitable seating inquiry.

Finally, the Court held that it is the employer rather than the employee that bears the burden of showing that compliance with the wage orders is infeasible because no suitable seating exists.

This case widely impacts employers in California. While it provides much needed clarification, the Court’s decision does not draw any bright lines for employers to follow.  Employers will have to take a very close look at their seating policies and practices to determine compliance with the wage orders.

Nisha S. Patel also contributed to this article.