234 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com Code violations to seek civil penalties of $100 or $200 per employee, per pay period (see §§ 5.15, 7.25). Plaintiffs’ lawyers have invoked this once-obscure seating rule in representative actions against retailers, grocery stores, banks, hotels, pharmacies, warehouses, and other employers whose employees often must work while standing. 7.11.1 Early decisions Until 2009, no published decision had addressed a seating claim. In 2005, in Hamilton v. San Francisco Hilton,325 a trial court rejected the seating claim of a guest service agent who challenged a hotel’s requirement to stand at the front desk. The trial court granted the hotel summary judgment because (1) standing and continual mobility throughout the front office area were essential functions of the job and (2) seated employees could not safely use a computer, fit their knees and legs in the confined workspace, or open a cash drawer. Further, the hotel could reasonably decide that guest service agents should stand to serve guests—a business judgment about image and brand that a court should not “second guess.” In 2009, however, a federal district judge in San Francisco breathed new life into seating claims, ruling that a store cashier could pursue such a claim.326 And then, in 2010, two California appellate courts recognized the viability of seating claims.327 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.328 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:329 (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.330 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.”331 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.”332 The physical layout of a workplace is also relevant.333 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.334
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