The California Supreme Court issued its decision in Kilby v. CVS Pharmacy, Inc. last week, on April 4, 2016, providing long-awaited, yet murky, guidance on the many questions regarding an employer’s obligations to provide “suitable seating.” IWC Wage Orders 7 and 14, among others, provide: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” On the other hand, these Wage Orders also state: “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.” In interpreting these provisions, the California Supreme Court held:

1. 1.     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 job site during a complete shift. If the tasks being 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.
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 (i.e., compliance is infeasible because no suitable seating exists).

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