Seating arrangements in workplaces across the state may get a little adjustment, depending
on how the California Supreme Court handles certified questions about state law that
the Ninth U.S. Circuit Court of Appeals has asked of it in two cases.
Most of the state Industrial Welfare Commission's wage orders (15 of 17) require employers
to provide workers "suitable seats when the nature of the work reasonably permits
the use of seats." Employees have stood up for that right since the Second Appellate
District held in
Bright v. 99cents Only Stores (189 Cal. App. 4th 1472 (2010)) that they can seek penalties under the state's Private
Attorney General Act.
Now, in
Kilby v. CVS Pharmacy and
Henderson v. JP Morgan Chase Bank (questions certified, 739 F.3d 1192 (9th Cir. 2013)), the state Supreme Court will
address whether retail workers have a right to "suitable seats."
Marc A. Koonin, an employment associate with Sedgwick in San Francisco, said in an
email that the exposure for major chain stores could amount to millions of dollars:
"This will be a big deal, since there is currently so little guidance on these issues,
and since the extent of potential employer exposure is likely to change significantly
depending on the specific answers."
CVS, whose lead counsel is Tim Long, a partner with Orrick, Herrington & Sutcliffe
in Sacramento, argues that the seating rule was meant to apply only in factory settings - to
workers on assembly lines or operating sewing machines, for example - not in retail
environments. State wage orders address numerous conditions in various workplaces,
from broadcasting to manufacturing.
"When you come into a retail store and the cashier is seated, it gives you a very
different experience," says Long. "When someone is standing, it projects a feeling
that they are ready to help you."
The Ninth Circuit asked the state Supreme Court to clarify what factors courts may
consider in determining the suitability of seating, including:
- all or just some of an employee's duties
- the employer's business judgment
- workplace layout
- workers' physical characteristics
- whether an employee must prove what qualifies as a suitable seat.
Michael Rubin, a partner at Altshuler Berzon representing both the
CVS and
JPMorgan plaintiffs, says job tasks should be disaggregated to determine which could be performed
while seated, and he says the law requires California employers to provide seating
for workers while they're performing those tasks, much as it requires employers to
provide breaks for meals and rest.
The state's high court hasn't yet set a date for argument on the Ninth Circuit's
certified questions.
Donna Mallard
Daily Journal Staff Writer
