©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 235 viability of seating claims.315 In 2013, the Ninth Circuit further enlivened seating claims by holding that employees need not request a seat to trigger their employer’s duty to provide one.316 But other aspects of the employer’s duty to provide a seat remained unsettled. 7.11.2 The California Supreme Court’s pro-employee decision in Kilby In 2013 the Ninth Circuit, hearing consolidated appeals, asked the California Supreme Court to resolve these issues of first impression:317 (1) Does the phrase “nature of the work” refer to an individual task performed during the workday, or does “nature of the work” require a holistic look at the entire range of duties? And if the holistic approach applies, then should courts consider the entire range of duties if the employee spends more than one-half of the time on tasks that reasonably allow the use of a seat? (2) In deciding whether the nature of the work “reasonably permits” the use of a seat, should courts consider the employer’s business judgment, the physical layout of the workplace, and the employee’s physical characteristics? (3) Must the employee prove what a “suitable seat” would be? In 2016 the California Supreme Court, in Kilby v. CVS Pharmacy, answered these questions.318 First, Kilby rejected both the employers’ argument that the entire job must be considered holistically and the plaintiffs’ argument that the job must be considered task by task. Kilby held instead that the proper focus is on the tasks performed at a given location. The trier of fact is to “consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.”319 Second, Kilby ruled that while the employer’s business judgment, although not controlling, is a factor to consider in determining whether the nature of the work reasonably permits seating: “An objective inquiry properly takes into account an employer’s reasonable expectations regarding customer service and acknowledges an employer’s role in setting job duties. It also takes into account any evidence submitted by the parties bearing on an employer’s view that an objective job duty is best accomplished standing.”320 The physical layout of a workplace is also relevant.321 By contrast, the employee’s physical characteristics were not relevant in the case presented, which did not raise any issue about potential reasonable accommodations needed for particular workers.322 Third, Kilby held that the employer, not the employee, bears the burden of proving that no suitable seating exists.323 Kilby also reached out to make a pro-employee decision on an issue not even before it. Kilby held that if other job duties take the employee to a location where he must work while standing, he would be entitled to a seat, under section 14(B), during “lulls in operation.”324 Kilby encouraged more seating claims, while encouraging California employers to re-evaluate every location that requires standing to see if the nature of the work reasonably permits the use of seats at that location. The evaluation might involve an ergonomic study to determine the feasibility of adding seats. This development also highlights the importance of describing any standing requirement in the relevant job description. 7.11.3 Suitable Seating Claims Post-Kilby In 2022 the Court of Appeal addressed the issue of “lulls” under section 14(b), in LaFace v. Ralphs Grocery Co. The trial judge, following a bench trial, found that a grocery store need not provide seating to its cashiers. The liability issue on appeal was whether the trial judge had erred in denying the plaintiff’s claim under section 14(B).325 LaFace affirmed, holding that even when lulls occurred in a cashier’s primary duties, the cashiers were
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