• Dean Royer

Employee seating regulations

What is the meaning of California’s employee seating regulations?

Earlier this month the California Supreme Court decided the meaning of employee seating regulations (Industrial Wage Commission orders). In Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, the high court answered three certified questions from the federal Ninth Circuit Court of Appeals regarding orders stating that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The question of the meaning of this language arose from two separate federal cases. In one, customer service representatives for CVS Pharmacy challenged their employer’s practice of not providing them a seat for duties including operating a cash register, straightening and stocking shelves, organizing products in front of and behind the sales counter, cleaning the register, vacuuming, gathering shopping baskets, and removing trash. In the second, bank tellers at JPMorgan Chase Bank branches sued their employer for violating seating regulations in relation to their duties including accepting deposits, cashing checks, handling withdrawals, escorting customers to safety deposit boxes, working at the drive-up teller window, and making sure that automatic teller machines were working properly.

The questions about the seating regulation were:

(1) Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?

(2) When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?

(3) If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?

The California Supreme Court answered the questions as follows:

(1) 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, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.

(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.

(3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.


#Seating #Wageandhour

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