Section 14(A) of the wage orders regulating industries in California sets forth a seating requirement: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Emphasis added.) Section 14(B) further provides: “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 area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.” (Emphasis added.) The penalty amount set by statute is $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.
In Kilby v. CVS Pharmacy, Inc., 63 Cal.4th 1 (2016), the California Supreme Court provided instructions on the relevant factors to be considered in determining whether the nature of the work reasonably permits the use of a seat. Specifically, in Kilby, the Court rejected the “holistic” approach advocated by employers under which the court would be required to consider all of the work tasks performed by workers, such as cashiers and bank tellers, in determining whether the nature of the work reasonably permits the use of a seat. Instead, the Court ruled that a “holistic” analysis was inconsistent with the remedial purpose of the seating law. In doing so, the California Supreme Court ruled that:
“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.”
The Supreme Court went on to instruct that when evaluating whether the nature of the work reasonably permits the use of seats, “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.” Courts must focus on “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 more frequently or for a longer duration are more germane to the seating inquiry than those performed briefly or infrequently. Most importantly, an employee is entitled to a seat even if some of his or her duties include standing tasks, so long as the seat would not interfere with those standing tasks.
In the case of a cashier, for example, the analysis should be on the tasks performed at the cash register, not elsewhere in the store. Furthermore, the tasks performed most frequently and for the longest time – such as scanning, bagging, and processing payments — are most germane to the inquiry, and the fact that cashiers perform some standing tasks at the register does not preclude use of a seat.
Next, the Kilby court explained that Section 14(A) includes a “reasonableness standard.” Although the purpose of the seating law is to protect workers, this reasonableness standard balances the law’s remedial purpose against “considerations of feasibility.” The following factors may bear on feasibility: (1) “whether providing a seat would unduly interfere with other standing tasks”; (2) “whether the frequency of transition from sitting to standing may interfere with the work”; and (3) “whether seated work would impact the quality and effectiveness of overall job performance.”
The Kilby Court unanimously rejected the employers’ argument that courts should defer to the employer’s “business judgment” in deciding whether or not seats should be provided. Instead, an employer’s business judgment is just one “among the factors that can be objectively considered in light of the overall aims of the regulatory scheme, which has always been employee protection.” The Court was quick to point out, for instance, that an employer’s “mere preference” that employees stand will not be a valid exercise of business judgment. Moreover, an employer cannot arbitrarily define certain tasks as “standing” ones, since doing so would undermine the protective purpose of the wage order. Rather, an “objective inquiry” as to seats “properly takes into account an employer’s reasonable expectations” about work expectations, but also considers “any evidence submitted by the parties bearing on an employer’s view that an objective job duty is best accomplished standing.”
As with the employer’s business judgment, the physical layout of the workspace is also a factor that may be considered in the “totality of the circumstances inquiry.” However, the Court cautioned an 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.” In assessing the effect of the physical layout on the entitlement to seats, courts should consider evidence “that seats are used to perform similar tasks under other, similar workspace conditions” and “whether the physical layout may reasonably be changed to accommodate a seat.”
Righetti • Glugoski, P.C., is an award-winning California-based law firm that specializes in protecting the rights of employees. Righetti Glugoski frequently litigates employment class actions, including overtime claims under state and federal law. Righetti Glugoski represents clients throughout California where employers have failed to provide seats, including a $65M recovery which stands as one of the largest PAGA recoveries to date. Righetti Glugoski represented the employees in the Kilby v. CVS Pharmacy case.
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 Cal. Lab. Code § 2699(f)(2).
 Kilby, 63 Cal.4th at 16.
 Id. at 17.
 Id. at 18.
 Kilby, 63 Cal.4th at 19.
 Id. at 19-20.
 Id. at 21.
 Id. at 21.
 Id. at 22.
 Id. at 21-22.
 Id. at 22.