In the recently decided case of Kilby v. CVS Pharmacy, the California Supreme Court ruled employers must provide an employee with seating if the employee’s tasks at a discrete location make seated work feasible, even if the employee’s job duties include other standing tasks. The ruling will reverberate for all employers, particularly those in the retail industry.

California state wage orders provide “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Prior the Kilby matter, no court had provided guidance as to what “nature of the work” actually means. The court in Kilby found “nature of the work” refers to the actual tasks performed by an employee at a particular location. Notably, “nature of the work” does not involve the entire range of an employee’s duties anywhere on the jobsite during a shift.

If an employee’s tasks at a given location reasonably permit sitting, and the provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. 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. Finally, employers who argue a suitable seat is not available have the burden of proving the unavailability.

In light of the court’s ruling in Kilby, employers will be required to make individualized, personalized, customized assessments of the tasks performed by their employees to determine whether an employee is entitled to perform his or her job while seated. To head off the threat of expensive class action or PAGA claims, employers should be proactive and consider self-audits of their employees’ tasks to determine who is entitled to seating.

Additional Information

For more information about this proposal, please contact your Kutak Rock attorney or the author of this alert.