©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 235 Third, Kilby held that the employer, not the employee, bears the burden of proving that no suitable seating exists.335 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.”336 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 considerations regarding safety, ergonomics, and the impacts on customer service. 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).337 LaFace was affirmed, holding that even when lulls occurred in a cashier’s primary duties, the cashiers were still expected to move about the store fulfilling various other tasks: “Sitting in or near the checkstands when there are no customers in line instead of cleaning, restocking, assisting other departments, or fishing [for customers], would interfere with the performance of the cashiers’ other duties.”338 LaFace stated that employees cannot create a “lull in operations” simply by choosing not to perform their job duties.339 In 2023 Seyfarth obtained a defense verdict following an eleven-day bench trial on a suitable seating claim.340 The Court concluded that the totality of the circumstances demonstrated that employees had significant job tasks that required standing, or were done best while standing, and that providing a seat was likely to lessen performance and increase safety hazards. Additionally, the Court concluded that the employer had made a reasonable, goodfaith business decision that standing employees provided, and were perceived to provide, better customer service and such a decision was entitled to weight as it was not arbitrary or a mere preference. Recently, the Court of Appeal upheld summary judgment in favor of an employer in a case in which the plaintiff claimed working in the cash booth of a drive-thru reasonably permitted the use of a seat.341 The defendant employer presented evidence that included an ergonomics expert and argued that no suitable seat exists for the position. The Court of Appeal agreed, finding that the plaintiff did not raise a genuine issue of material fact as to whether suitable seating exists. 7.11.4 Workplace temperatures providing reasonable comfort Appearing in the Wage Orders right after the once-obscure section 14 (on suitable seating) is the still more obscure section 15, which addresses workplace temperature: (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60° F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68°. (C) A temperature of not less than 68° shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section.
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