In Kilby v. CVS Pharmacy, Inc., the Court analyzed California wage order requirements stating that employers must provide their employees with suitable seating under certain circumstances. Plaintiff filed a class-action lawsuit against her former employer CVS Pharmacy, Inc. for failing to provide seating for any workplace tasks. The trial court held that whether an employer must provide seating depends on an analysis of all an employee’s assigned duties. After examining the totality of employee duties and noting that many of the duties would likely require an employee to stand, the trial court granted summary judgment for CVS Pharmacy and Plaintiff appealed.

The court noted that Wage Order No. 4-200 requires that employers provide their employees with suitable seats when the nature of the work reasonably permits the use of such seats. The California Supreme Court analyzed the language of the Wage Order and, disagreeing with the trial court, determined that “nature of the work” refers to the tasks that are actually performed by an employee at a particular location, rather than the entire slate of tasks that are performed on a given day. If an employee’s workplace tasks at a discrete location reasonably permit seating, seating must be provided if such seating does not interfere with any tasks that require standing, and the seating does not significantly interfere with effective job performance.

Furthermore, the Court stated that whether the nature of the work “reasonably permits” suitable seating depends on an objective analysis of the totality of the circumstances. Factors to consider include the employer’s business judgment – as long as it does not encompass an employer’s mere preference that certain tasks be performed while standing – and the physical layout of the workplace, although neither factor is dispositive. Physical differences between employees are not considered in the reasonableness analysis.

Finally, the Court added that an employer bears the burden of showing that compliance with the Wage Order is infeasible because no suitable seating exists.

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