Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016)
In this opinion, the California Supreme Court answered three questions posed to it by the United States Court of Appeals for the Ninth Circuit involving suitable seating requirements under California law. Section 14(A) of California Wage Order No. 7-2001 states that “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Section 14(B) states that “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.” The federal trial court concluded that Sections 14(A) and (B) were mutually exclusive and that the former applied when an employee was actually engaged in work, while the latter applied when an employee was not actively working. The California Supreme Court answered the Ninth Circuit’s questions as follows: (1) If the tasks performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for; (2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics; and (3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.