Kilby v. CVS Pharmacy, Inc.; Henderson v. JPMorgan Chase

Case Updates

The California Supreme Court addressed the three questions certified by the Ninth Circuit involving California wage order requirements that an employer provide suitable seating for employees. First, the Court held that the phrase “nature of the work” refers to all of the tasks performed in a given location on the job. Second, the Court concluded that a “totality of the circumstances” approach is appropriate in determining whether the nature of the work reasonably permits sitting, and this inquiry should focus on the nature of the work rather than the specific characteristics of a specific employee. Lastly, the Court held that the employer has the burden of proving unavailability when seeking to establish as a defense that no suitable seat exists.

In its coalition brief, the Chamber asked the California Supreme Court to interpret the “suitable seating” regulation, which appears in nearly all of the Industrial Welfare Commission (“IWC”) Wage Orders, consistent with Division of Labor Standards Enforcement (“DLSE”) enforcement practices, to require a holistic assessment of the “nature of work” and to consider real world factors when determining whether the nature of work reasonably permits the use of a seat. The brief points out that given the regulatory and enforcement history of the suitable seating provision, the court should adopt an approach that gives ample consideration to the business judgment of the employer that designed and sustains the job.

The brief was filed jointly with the California Chamber of Commerce.

Katherine M. Forester and Malcolm A. Heinicke of Munger, Tolles & Olson represented the U.S. Chamber as co-counsel to the U.S. Chamber Litigation Center.