During its Wednesday conference, the California Supreme Court agreed to answer an issue certified for its decision by the Ninth Circuit: what standard should an employer use to determine whether employees are entitled a “suitable seats” during their working hours pursuant to California law?
The question arises from two consolidated cases, Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA. The plaintiff in Kilby was employed as a clerk/cashier. She spent about ninety percent of her time operating the cash register, scanning and bagging merchandise and processing customer payments. The rest of her time, she performed tasks requiring that she move around the store – gathering shopping carts and restocking display cases. The plaintiff was told during her training that her job would require standing for long periods; the defendant’s view was that standing while operating a cash register promoted excellent customer service.
Henderson poses the same question in a slightly different context. The plaintiff, a former teller, spent most of her time accepting deposits, cashing checks, and handling withdrawals. A small fraction of her time was spent doing various other things that required moving around the bank branch: escorting customers to safe deposit boxes, working the drive-up teller window and checking ATMs.
The issue turns on two orders of the California Industrial Welfare Commission. California Wage Order 4-2001 governs “professional, technical, clerical, mechanical and similar occupations.” Wage Order 7-2001 governs non-executive employees in “the merchantile industry.” Section 14 of the two orders is identical:
(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.
So what does “nature of the work” mean? Neither Wage Order says. Nor do they define “reasonably permits” or “suitable seats.”
The plaintiffs argue that the “nature of the work” refers to each discrete task an employee performs: if the job can reasonably be done seated, the employer has to provide a suitable seat. The defendants take what the Ninth Circuit called a “holistic” approach, taking into account the entire range of an employee’s duties, the layout of the workplace, the employer’s philosophy about the employee’s job (i.e., the defendant in Kilby‘s view that standing cashiers perform better), and any other relevant factors. Both district courts adopted the holistic approach and found for the defendants.
The question potentially makes an enormous difference to California employers. According to the Ninth Circuit, if the Supreme Court adopts the task-by-task approach, “thousands of California’s employees” might argue that they are entitled to seats. And the financial stakes are huge: “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.” So we should expect to see many amicus briefs from both sides of the issue before the Supreme Court.
The California Supreme Court generally decides certified questions more quickly than other cases, so we expect Kilby to be decided in the next eight to twelve months.