Earlier this week, the California Supreme Court, in Kilby v. CVS Pharmacy, clarified that the suitable seating requirement in several California wage orders may entitle employees to a seat when their tasks can be accomplished while seated. Specifically, the language states: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” There has been no interpretation as to what seats are “suitable,” who determines the “nature of the work,” or under what circumstances the “nature of the work” “reasonably permits” suitable seats.

The Ninth Circuit asked the California Supreme Court to weigh-in and interpret this language after its application arose in two federal appeals involving separate industries. In the underlying federal appeals cases, clerks/cashiers at CVS and tellers at a bank alleged that their employers failed to provide them with adequate seating.

According to the California Supreme Court, whether an employee is entitled to a seat depends on an objective assessment of all relevant factors – that is, a totality of the circumstances. The analysis begins with the examination of whether tasks at a discrete location may be performed while seated. The requirement applies to individual tasks performed throughout the workday, rather than the entire range of duties performed during a complete shift or contained within a job description.

This task-based analysis is then balanced against considerations of feasibility and practicability, such as whether a seat would interfere with other standing tasks, whether the frequency of transitioning from sitting to standing would interfere with the work, and whether seated work would impact the quality and effectiveness of job performance. For example, the physical layout of the workplace or an employer’s business judgment as to whether the work should be performed while standing (e.g., in order to provide better customer service) may be relevant factors in the overall assessment.

Employers are encouraged to evaluate their operations to ensure compliance with the wage order seating requirements. Because “whether the nature of the work reasonably permits the use of seats” turns on several considerations, the answer may vary for different positions and/or worksites. Failure to comply with the seating requirement exposes employers to potential class action litigation, in which the employers will bear the burden to prove the unsuitability of seating.