After previously denying class certification, a California district court recently dismissed an action against CVS Pharmacy seeking penalties under the Private Attorney General Act for failing to provide its retail clerks with suitable seating.   In Kilby v. CVS Pharmacies, Inc., the Court granted CVS’s motion for summary judgment and ruled that section 14(A) of the Wage Orders – requiring “[a]ll working employees … be provided with suitable seats when the nature of the work reasonably permits the use of seats” – did not apply to the CVS retail clerks at issue in the case.  The court explained that in evaluating whether the “nature of the work reasonably permits the use of seats,” the "nature of the work" performed by an employee must be considered in light of that individual’s entire range of assigned duties, not particular duties an employee may perform throughout the day. 

The primary duty at issue in Kilby was the operation of the cash register, which plaintiff argued “reasonably permitted the use of seats” because the registers were in fixed locations and the duties could be performed while sitting.  The court rejected this piecemeal application of section 14(A), noting that many of the other duties of the CVS retail clerk required standing: “i.e., stocking shelves, assisting customers with locating items in areas of the store away from the cash registers, sweeping or other cleaning, retrieving items from high shelves, fetching photographs and cigarettes from other parts of the store, [etc.]”  The court also noted that Kilby was specifically trained to perform her job while standing, including operating the cash register, and that CVS trained its employees to stand in order to present an image of attentiveness.  In ruling on the issue, the Court specifically considered CVS’s business judgment in this regard, explaining it was “undoubtedly relevant to understanding the nature of a Clerk/Cashier’s work.”

Although there is still time for an appeal, the important point from Kilby is to create reasonable expectations of the requirements of any position, including whether the overall nature of the position requires standing, and to communicate those expectations to employees.  If your job descriptions do not make these expectations clear, consider revising them, and, of course, consult your legal counsel when necessary.