Steve Katz had a blog post recently on the California Supreme Court’s decision in Kilby v. CVS Pharmacy, which provided some clarification on the state’s “suitable seating” requirement. This bulletin will provide a more in-depth look at the Kilby decision and what it means for employers who have operations in California.

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.” (Scroll down to Section 14.) And even when it does not, “an adequate number of suitable seats” shall be made available to employees who “are not engaged in the active duties of their employment . . . .” Failure to comply with California’s suitable seating regulations subjects an employer to substantial monetary penalties. In Kilby, the California Supreme Court recently offered guidance on precisely when seating is required.

“Nature of the work”

The Court first examined the meaning of the “nature of the work.” In deciding the nature of the work, the employer should look at the “overall job duties performed at a particular location by any employee” and determine whether those “tasks reasonably permit seated work.” Employers should look at the “subsets of an employee’s total tasks and duties by location” and “consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.” Additionally, the employer should look at the “actual tasks performed” or “reasonably expected to be performed.”

Failure to comply with California’s suitable seating regulations subjects an employer to substantial monetary penalties.

For example, an employee at a retail store hired for general duties might work at both a check stand and a sales floor. The check stand is a “particular location,” and the sales floor another location. A clerk could have a right to sit at a check stand but not on the sales floor. The employer in this instance would look at the actual tasks performed. Tasks performed for longer periods or more frequently would be considered more relevant to the seating inquiry than tasks that are completed in less time, or less often. In this example, an employer could see how long the employee was actually at the check stand and at what frequency. If the employee is at the check stand only 30 minutes a day and on a show room floor serving customers for five hours a day, a court will look at the “location-specific” tasks to determine whether a seat should be provided. An employer might conceivably have to provide a seat at the check stand for 30 minutes, but not on the show room floor where the employee must walk around to serve customers.

“Reasonably permits”

The Court next established a framework for evaluating whether the nature of the work “reasonably permits” use of a seat at work. This framework entails looking at the totality of the circumstances. The totality of the circumstances would include “relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing.”

The Court emphasized that this framework requires consideration of the “feasibility and practicability” of allowing employees to sit in the workplace. If sitting would “unduly interfere” with standing tasks, this would cut against the feasibility of allowing the employee to sit. If transitioning from sitting to standing would interfere with work, or if sitting while performing a particular task negatively affects job performance, then the work might not reasonably permit the use of seats. A court must conduct a “qualitative assessment of all relevant factors.”

Further, the Court addressed the factors that could influence a totality-of-the-circumstances analysis:

“Business judgment”

According to the Court, “business judgment” does not “encompass an employer’s ‘mere preference’ that tasks be performed while standing.” Instead, the standard is objective. This objective standard should take into account an employer’s “reasonable expectations.” The Court further explained that an employee’s “duty to provide a certain level of customer service should be assessed, along with other relevant tasks and obligations.”

Physical layout

The Court also analyzed whether the physical layout of an employee’s work area was a relevant factor in determining whether suitable seating should be made available to employees. The Court noted that physical layout matters to the extent that it informs the “expectations of both the employer and employee with respect to job duties.” Although physical layout is relevant, an employer cannot “unreasonably design a workspace to further a preference for standing” or “deny a seat that might otherwise be reasonably suited” for a task.

If sitting, or transitioning from sitting to standing, would interfere with the work, then the work might not reasonably permit the use of seats.

Physical differences between employees

The Court rejected the notion that suitable seating be based on an employee’s stamina or physical strength. Instead, the Court emphasized that the analysis be based on “characteristics of the particular location” and the “duties associated” with the task.

Burden is on the employer to show “suitable seating” compliance

Finally, the Court clarified that the employer has the burden of showing compliance with the suitable suiting requirement. This effectively creates a rebuttable presumption that all job duties reasonably permit the use of seats unless the employer establishes the contrary.

Meaning for employers

It is unclear whether Kilby will make it more difficult for employers to defend their seating policies. Although the decision provides a framework for analyzing suitable seating issues, it fails to give employers a clear set of guidelines for determining whether a particular job requires that a seat be provided.

These regulations have nothing to do with an employer’s obligation to accommodate disabled employees under disability rights laws.

One immediate implication of Kilby is that employers with operations in California should take great care in the way they go about—and especially document—accommodating temporarily or permanently disabled employees who cannot stand. Keep in mind that California’s suitable seating regulations are for able-bodied employees. These regulations—and Kilby’s interpretation of them—have nothing to do with an employer’s obligation to accommodate disabled employees under the Americans with Disabilities Act, or the California Fair Employment and Housing Act or other disability rights laws.

That having been said, if an employer has previously accommodated a disabled employee in a given job position by providing seating, that is going to be highly sought-after evidence when an able-bodied employee in the same position sues for violation of the suitable seating regulations. If a disabled employee was able to perform the job while seated, how can it be that the job does not reasonably permit the use of seats? It is, accordingly, important, when seating is a disability accommodation, that employers also modify the duties of the position to allow it to be performed while seated. And it is critically important that employers document how the job duties had to be modified in order to permit a disabled employee to perform his or her job duties while seated. Otherwise, evidence of an employer’s compliance with one set of laws will become evidence of how an employer is violating another.

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