Employment & Labor Insider

NOTE FROM ROBIN: Welcome to our Los Angeles-Century City Office, and to Steve Katz, who will be posting from time to time about the most peculiar of California’s employment laws.

California's wage orders, which regulate working conditions for most industries and occupations, require that "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." What, exactly, does this mean?

Last week, in Kilby v. CVS Pharmacy, Inc., the California Supreme Court settled some important open questions in interpreting the suitable seating regulations. (And generated a bunch of new ones.)

First, the Court held, "nature of the work" doesn't mean, as employers have tended to argue, the entire range of job duties at the job site throughout an employee's entire shift. Nor does it mean, as employees have tended to argue, each task or duty, viewed in isolation, one by one. Rather, it means something in the middle: it "refers to an employee's tasks performed at a given location for which a right to a suitable seat is claimed."

The Court made it clear that "a given location" does not mean the worksite as a whole, but rather a point within the worksite around which a cluster of activities takes place. Something like "work station" might be a plausible gloss on "a given location." So, for example, in a retail store, a checkstand might be "a given location," the sales floor might be a different one, and so forth. The analysis would be different for each location in the store. A clerk might have the right to a seat at the checkstand, but not while working on the sales floor.

Second, whether the work at "a given location" "reasonably permits" the use of seats "is a question to be determined objectively based on the totality of the circumstances." The relevant "circumstances" are the "nature of the work" performed by any employee in the job, but "not an individual employee's characteristics." The employer's "business judgment" and the layout of the workspace are "relevant" to the "totality of the circumstances," but "not dispositive." In effect, the Court held that a seat is required for employees when it would be reasonable to provide one.

These rules apply to all employees, able-bodied or otherwise.

The "suitable seating" rules do not replace requirements that employers take reasonable steps to accommodate employees with disabilities. Even when the nature of work at a given location in the worksite does not reasonably permit the use of seats, there may still be an obligation to modify the work to accommodate the needs of a disabled employee. But Kilby does not create an obligation to make the same modifications for able-bodied employees.