The right to sit. California business owners who require their employees to stay standing throughout the workday may need to rethink their policies. In the case of Kilby v. CVS Pharmacy, Inc., the Ninth Circuit Court of Appeals has ruled in favor of an employee who filed a class action complaint because she and other employees were not allowed to sit down while doing their jobs.

The case dealt with the language of Wage Order 7-2001 of California’s Industrial Welfare Commission. This order contains a provision that all working employees “must be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The Right to Sit

CVS argued that in order to determine whether the nature of the work reasonably permits the use of seats, a court must consider all of the employee’s tasks, and determine whether the position should be classified as a “sitting” job or a “standing” job. The Ninth Circuit disagreed, holding that this type of “all-or-nothing” approach is too strict.

The Court held that if an employee spends a substantial portion of a workday at one location doing tasks that can reasonably be done while sitting down, the employee should be allowed to sit while performing those tasks – even if some of the employee’s other tasks must be performed while standing. According to the ruling, when courts consider whether the use of seats would be reasonable, they must examine the employee’s tasks by subsets based on the location in the workspace in which they are performed.

Additional Holdings

CVS argued that courts should accord deference to an employer’s “business judgment” regarding whether tasks should be performed while an employee is standing. The plaintiffs argued that business judgment should not be a factor in the right to sit. The Court held that while employers are allowed to define their employees’ duties, their “mere preference” that an employee perform a task while standing is not a proper factor.

The plaintiffs argued that the physical layout is irrelevant to whether the use of seats is reasonably permitted. The Court disagreed, holding that the layout can be relevant in that it may inform the expectations of what an employee’s job duties will be. However, the Court also held that an employer may not “unreasonably design” a workspace in order to prevent an employee from sitting. (Also, the Court ruled that evidence of seats being used in similar workspaces may be relevant to an inquiry.)

The parties disagreed on whether an employee’s physical characteristics may be taken into consideration of the right to sit. The Court held that the emphasis should be on the nature of the work itself, and not the nature of the employee.

The Court held that there is not a burden on an employee to prove that a particular seat is suitable. The ruling states that the burden instead lies on an employer who argues that there is no suitable seating. [Read more…]