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Do Employers Need To Provide Suitable Seating To Employees: Kilby v. CVS – California Supreme Court Ruling in Seating Case

By on October 5, 2016

After losing their motion for class certification, defendants moved for msj, the crt granted, plaintiffs appealed.  The Ninth Circuit requested clarification from the California Supreme Court on the proper interpretation of three areas of the suitable seating provision, including the meaning of “nature of work” and “reasonably permits,” and who bears the burden to show suitable seating is available.


“Nature of Work”


Employers should also consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.  In other words, assess whether the employer should provide a seat if a task at a given location reasonably permits sitting and the seat would not interfere with performance of any other tasks that may require standing.


“Reasonably Permits”

The Court then addressed what factors courts should consider in evaluating whether the nature of the work “reasonably permits” sitting. The Court adopted an objective approach to this issue.  Courts should determine whether the nature of the work “reasonably permits” sitting based on the totality of the circumstances.  The inquiry should focus on the nature of the work, not an individual employee’s characteristics.  For example, an employer’s business judgment and the physical layout of the workplace are relevant factors.  The Court noted that an objective inquiry properly takes into account an employer’s reasonable expectations regarding customer service, and acknowledged an employer’s role in setting job duties.  The physical layout of a workspace may be relevant under certain circumstances; however, these factors are not necessarily dispositive under a totality of the circumstances test.

Finally, the Court determined whether a plaintiff must show that a suitable seat was available and not provided to the employee. In analyzing the relevant portions of the Wage Orders, the Court determined that the plaintiff does not bear the burden of proof. 


Employer Bears the Burden of Proof

According to the Court, no language exists to suggest that an employee must show that a particular type of seat would fulfill the requirement because the law expressly states that employees “shall be provided with suitable seats.”  An employer bears the burden of showing compliance is infeasible because no suitable seating exists.  As such, employers arguing that a suitable seat is not available bear the burden of proving unavailability.

Notably, the Court was critical of denying an employee a seat “when he spends a substantial part of his workday at a single location, merely because his job duties include other tasks that must be done standing.”


Kilby was remanded to USDC and 9/7 there is a CMC to set a discovery schedule.

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