The Ninth Circuit is considering several class action appeals over California's "suitable seating" requirement contained in its wage orders. Here is an example from Wage Order 7-2001, governing the retail industry:
14. Seats.(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
The Ninth Circuit is considering appeals in two cases. One involves bank tellers. One involves retail clerks.
In the retail case, CVS's cashiers spend about 90% of the time working a cash register, ringing up transactions. The other 10% of the time, she has to walk around the store, performing various tasks. CVS does not provide seats for the cashiering duties, believing that standing employees provide better customer service. CVS told the plaintiff her job involved extensive standing when it hired her.
In the bank case, tellers spend a great deal of time at their windows, making deposits, processing withdrawals, etc. They also escort customers to safety deposit boxes, check ATMs and perform other duties that require mobility.
The employees argue:
if an employee is engaged in a task that can objectively be performed while seated, the employer must provide the employee with a suitable seat. Under this interpretation, neither the employee’s other tasks nor the employer’s business judgment would affect whether the nature of the work reasonably permits the use of seats.
On the other hand, the employers say:
courts should discern the nature of an employee’s work by considering the entire range of tasks the employee actually performs in combination with the employee’s job description, the layout of the workplace, the employer’s business judgment concerning the employee’s job, and any other factors the court deems relevant. An employer would only be subject to Section 14(A) when all of these factors taken together reasonably permit the use of a seat.
The Court's dilemma is that the Wage Order's text permits either interpretation because it's vague.
So, does the "nature of the work" in either or both cases reasonably permit the use of seats? And who gets to decide? The Ninth Circuit wants to know how the California Supreme Court interprets "the nature of the work." Here are the questions the federal court would like answered:
So, does the "nature of the work" in either or both cases reasonably permit the use of seats? And who gets to decide? The Ninth Circuit wants to know how the California Supreme Court interprets "the nature of the work." Here are the questions the federal court would like answered:
1. Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe “nature of the work” holistically and evaluate the entire range of an employee’s duties?
a. If the courts should construe “nature of the work” holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?
2. When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
3. If an employer has not provided any seat, does a plaintiff need to prove what could constitute “suitable seats” to show the employer has violated Section 14(A)?
As the Ninth Circuit points out in its request, if the Supreme Court agrees to answer these questions, it will have a significant effect on California employers and employees:
Section 14 could have a dramatic impact on public policy in California as well as a direct impact on countless citizens of that state, both as employers and employees. Even a conservative estimate would put the potential penalties in these cases in the tens of millions of dollars. See Cal. Lab. Code § 2699(f)(2) (“If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.”); see also Home Depot U.S.A., Inc. v. Super. Ct., 120 Cal. Rptr. 3d 166, 177 (Cal. Ct. App. 2010) (finding California Labor Code § 2699(f)(2) applies to Section 14 of Wage Order 7-2001); Bright v. 99cents Only Stores, 118 Cal. Rptr. 3d 723, 730 (Cal. Ct. App. 2010) (same).
As a former restaurant worker, I was thinking that if the plaintiffs' interpretation is correct, then a waiter taking an order would have the right to sit down at the table? Taking the order, after all, is a duty that may be accomplished while seated. How about the bartender? There are other industries where the task-based approach could change the workplace significantly. Third base coach? Factory worker? Professor? Will the seat have to have wheels if some movement is required within the work area (because that is "suitable")? Does the employer have any say in what the "nature of the work" involves, or will that be up to the courts / a jury / the Division of Labor Standards Enforcement?
Anyway, we'll see in the next few weeks if the California Supreme Court is interested in answering these and other questions. Let's hope these questions are addressed so employers and lower courts may understand what is expected of them.
The case is Kilby v. CVS and the Ninth Circuit's request to the California Supreme Court is here. As of now, there is no Supreme Court online docket for this case.
