Kilby V. CVS Pharmacy: The California Supreme Court In The Driver’s Seat Clarifies Seating Standards In The Workplace -

Most of the California Industrial Welfare Commission’s industry and occupational wage orders contain a two-sentence provision requiring employers to provide employees with suitable seats “when the nature of the work reasonably permits the use of seats.” This provision largely stayed out of the spotlight until a few years ago, when a flurry of class and representative action lawsuits were filed against employers in a variety of industries, alleging violations of the suitable-seating requirement and seeking to recover exorbitant civil penalties on behalf of aggrieved employees who were allegedly denied suitable seats. Tasked with resolving two appeals in class actions alleging violations of the suitable-seating requirement, and faced with a glaring lack of precedent on the subject, the Ninth Circuit sought guidance from the California Supreme Court on the meaning of the phrases “nature of the work” and “reasonably permits,” as well as who bears the burden of proof in suitable-seating lawsuits. The California Supreme Court’s long-awaited decision in Kilby v. CVS Pharmacy, Inc. answered the Ninth Circuit’s questions, providing some direction regarding the extent of an employer’s obligation to provide employees with suitable seats.

The Kilby decision makes clear that determining whether the nature of the work reasonably permits use of a seat requires a fact-intensive, multi factor approach that examines discrete workplaces and workstations and considers the totality of the circumstances. With an emphasis on practicality and reasonableness, the court endorsed a common-sense approach to suitable-seating cases, which should nicely complement the common-sense analysis that many employers already undertake when determining whether, when, and where it is feasible to provide seats to employees.