California Seating Issues Punted to Supreme Court

     (CN) - Determining when an employer must provide seats for clerks, cashiers, tellers and other employees requires guidance from the California Supreme Court, the 9th Circuit says.
     In three questions certified to the state's high court Tuesday, the federal appeals court requested its interpretation of two California Wage Orders that could result in "penalties in ... the tens of millions of dollars."
     The issue came up in two proposed class actions, one against CVS Pharmacy and the other against JPMorgan Chase Bank. In the first, lead plaintiff Nykeya Kilby claimed that CVS had violated California Wage Order 7-2001 Section 14(A) when it refused to allow her sit down while working the cash register where she spent about 90 percent of her shift. Similarly, former bank tellers Kemah Henderson, Taquonna Lampkins, Carolyn Salazar and Tamanna Dalton claimed that JPMorgan had violated California Wage Order 4-2001 Section 14(A) by refusing to allow its tellers to sit down.
     Federal judges denied class certification in both cases, adopting a "holistic" reading of the wage orders by taking into account the "entire range of an employee's duties" and the employer's "business judgement."
     Both wage orders require California employers to provide "suitable seats" to employees "when the nature of the work reasonably permits the use of seats."
     Because CVS checkers do not spend all of their time at the register, the District Court reasoned that the "nature of the work" required standing. This interpretation was later cited in the denial of class certification in the JPMorgan case.
     The workers have an entirely different view of the rules, however.
     "In their view, if an employee is engaged in a task that can objectively be performed while seated, the employer must provide the employee with a suitable seat," the certification order states. "Under this interpretation, neither the employee's other tasks nor the employer's business judgment would affect whether the nature of the work reasonably permits the use of seats."
     The appellate panel noted that "such liability could be imposed upon a large number of employers throughout California, depending on the interpretation given to Section 14."
     "Indeed, in addition to the three employers now before this panel facing potential penalties for violating Section 14, numerous actions have been brought against other employers in California state courts based on the same claim," the ruling continues.
     Conservative estimates "put the potential penalties in these cases in the tens of millions of dollars," the panel added.
     Deferring to the state's high court to answer issues of obvious importance and potentially far-reaching effect, the three-judge panel certified the following questions:
     1. "Does the phrase 'nature of the work' refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe 'nature of the work' holistically and evaluate the entire range of an employee's duties?" And "if the courts should construe 'nature of the work' holistically, should the courts consider the entire range of an employee's duties if more than half of an employee's time is spent performing tasks that reasonably allow the use of a seat?"
     2. "When determining whether the nature of the work 'reasonably permits' the use of a seat, should courts consider any or all of the following: the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?"
     3. "If an employer has not provided any seat, does a plaintiff need to prove what would constitute 'suitable seats' to show the employer has violated Section 14(A)?"
     Both cases are on hold pending the California Supreme Court's ruling.