People who sit at computers want to stand… Cashiers and bank tellers want to sit down…
You might need to sit down for this one…
The California Supreme Court has answered questions that came to them from the Ninth Circuit Court regarding a Wage Order that has been around for many years. In Kilby v. CVS Pharmacy, Inc,. Kilby filed a federal class action lawsuit alleging CVS violated Wage Order No. 7-2001. Section 14, subdivision A of that order provides: “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
This may impact many work environments, such as store or grocery cashiers, bank tellers, and other types of roles where employees stand during their shift. In summary, the Supreme Court says the following about providing “suitable seats” in these work environments (taken from Google Scholar, emphasis added):
- The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of the seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
- 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 judgement 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.
- 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.
I think the Supreme Court did a great job answering the questions put to them, but I also believe that employers may have some work to do.
Key things to take from this:
- The employer’s business judgement matters. Providing a certain level of customer service IS an objective job duty.
- The physical design and layout of the workplace matters. You must “objectively” evaluate the “totality of the circumstances”.
- This is NOT about individual’s characteristics or physical capacities.
- If you haven’t already, you WILL get questions about this from employees who are standing during their shift, and think they should be able to sit.
As an employer, are you prepared? Have you objectively evaluated positions where employees are standing to see if it’s appropriate to have them do that work seated? Have you done physical demands job analysis and/or ergonomics evaluations in your areas where employees are standing to see if providing a “suitable seat” may be appropriate?
My advice is that you jump into this before your employees do.