Life imitates art as employees win case, get to stay off their feet

http://rss.chicagolawbulletin.com/Articles/2016/07/26/Employees-seats-7-26-16.aspx

In a 1995 “Seinfeld” episode, George Costanza takes exception when he spots a security guard forced to stand his entire shift while on duty at a men’s store. His outrage is appeased only when he later decides to provide the guard with a chair.

“It is inhumane to make a man stand on his feet in one spot for eight hours a day,” he bellows to Jerry Seinfeld at the coffee shop. “Why shouldn’t he have a chair?”

Now this same question has reached the highest level of the California state and federal courts.

Neither Nykeya Kilby, who was primarily a cashier at CVS Pharmacy, nor Kemah Henderson, a teller for JPMorgan Chase Bank who spent most of her time at a teller window, was provided a seat by their employers.

Making them stand seemed to defy long-standing wage orders issued by California’s Industrial Wage Commission requiring that “employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” In California, the commission is the agency regulating wages, hours and working conditions, and courts treat its orders as equivalent to statutes.

Lacking a George Costanza to bellicosely champion their cause, Kilby and Henderson each filed a putative class-action complaint in California federal court alleging violations of the commission’s wage orders when the “nature of their work” seemed to “reasonably permit” providing “suitable seats.” They asked the court to perform “a task-by-task evaluation of whether a single task may feasibly be performed seated.”

In defense of their policies, CVS and JPMorgan urged a “holistic approach” that considered all functions of a job before determining seats were necessary. They pointed to the non-sedentary responsibilities of their employees, including the 10 percent of Kirby’s time spent stocking display cases or gathering shopping carts and Henderson’s escorting of bank customers to safe deposit boxes or checking the working condition of the bank’s ATMs.

The U.S. District Courts in San Diego and Los Angeles believed deference to “an employer’s ‘business judgment’ was appropriate when attempting to discern the nature of an employee’s work.” Both courts denied class certification and entered summary judgment for the defendants.

On appeal, the 9th U.S. Circuit Court of Appeals found the pertinent commission wage orders included no definitions of the key phrases “nature of the work,” “reasonably permits” or “suitable seats.” Coupled with the absence of any controlling precedent, the federal appellate court opted to refer the question of interpreting the seating requirement to the California Supreme Court.

The state high court found the plaintiffs’ approach “too narrow,” and the defendants’ argument “sweeps too broadly.” Instead, a totality of the circumstances test was employed to consider both the employer’s business judgment and the specific functions of the job. The court determined the “holistic approach” was inconsistent with the purpose of the commission’s seating requirement.

Glaringly omitting any cite to “G. Costanza,” the court relied on the commission’s determination that “humane consideration for the welfare of employees requires that they be allowed to sit at their work or between operations when it is feasible for them to do so.” As “Seinfeld” fans will recall, George is accustomed to such slights.

The California court then proceeded to dismantle the defendants’ reasoning. Considering all tasks performed by an employee as defendants urged “ignores the duration of those tasks, as well as where, and how often, they are performed.”

Echoing George’s lament about the security guard, the court unanimously concluded about the CVS cashier and JPMorgan Chase teller: “There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated.”

Following issuance of the California high court ruling in Kilby v. CVS Pharmacy Inc., 368 P.3d 554 (Cal. 2016), the 9th Circuit reversed the two district court decisions in favor of the employers, and in brief unpublished orders, remanded the two cases for the district courts to reconsider the summary judgments in light of that ruling. Henderson v. J.P. Morgan Chase Bank, N.A., No. 13-56095 (9th Cir., June 8), and Kilby v. CVS Pharmacy, Inc., No. 12-56130 (9th Cir., June 8, 2016).

Interestingly, the 9th Circuit issued a related, unpublished decision that same day affirming the certification of a class action against Wal-Mart brought by cashiers seeking seats.

In dicta, the 9th Circuit also found the trial court erroneously reviewed whether Wal-Mart cashiers spent most of their time working at registers for it resembled the “holistic approach” rejected in the Kilby v. CVS decision.

It would now be up to the trial court to determine whether the common tasks performed by cashiers could reasonably be performed while seated.

While the California Supreme Court and the 9th Circuit appear to have handed many employees a significant win in their quest to obtain suitable seating on the job, they must remain vigilant in the performance of their duties.

Fair warning lies in the chain of events that followed George Costanza furnishing the security guard with an appropriate chair.

The precedent-setting episode concludes with vindication for employers. A holdup is in process in the store, and as the camera pans out, the guard is seen not merely positioned comfortably in his new chair, but fast asleep, not working at all.