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Kilby v. CVS Pharmacy, Inc.

Supreme Court of California

April 4, 2016, Filed



 [***5]  [**557]   CORRIGAN, J.—The Ninth Circuit has certified questions 1 involving California wage order requirements that an employer provide suitable seating for employees under certain circumstances. The wage orders at issue here state that ] “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A) (Wage Order No. 4-2001), 11070, subd. 14(A) (Wage Order No. 7-2001).) We frame the Ninth Circuit's questions as follows. 2 

(1) Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee's duties performed during a given day or shift?

(2) When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer's business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?

(3) If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?

 [**558]  As explained in greater detail below, we answer those questions as follows.

(1) The “nature [****4]  of the work” refers to an employee's tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee's duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.

(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer's business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee's characteristics.

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63 Cal. 4th 1 *; 368 P.3d 554 **; 201 Cal. Rptr. 3d 1 ***; 2016 Cal. LEXIS 1950 ****; 166 Lab. Cas. (CCH) P61,696

NYKEYA KILBY, Plaintiff and Appellant, v. CVS PHARMACY, INC., Defendant and Respondent. AND CONSOLIDATED CASE.

Subsequent History: Reported at Kilby v. CVS Pharmacy, Inc., 2016 Cal. LEXIS 5428 (Cal., Apr. 4, 2016)

Prior History:  [****1] United States Court of Appeals for the Ninth Circuit, Nos. 12-56130/13-56095. United States District Court for the Southern District of California, No. 3:09-CV-2051-MMA-KSC and United States District Court for the Central District of California, No. 2:11-CV-3428-PSG-PLA.

Kilby v. CVS Pharm., Inc., 739 F.3d 1192, 2013 U.S. App. LEXIS 25862 (9th Cir. Cal., 2013)


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Business & Corporate Compliance, Labor & Employment Law, Wage & Hour Laws, Scope & Definitions, Statutory Application, Governments, Legislation, Interpretation, Administrative Proceedings