On April 4, 2016, the California Supreme Court took a stand by issuing a long-awaited opinion in Kirby v. CVS Pharmacy, Inc.  The decision clarifies certain ambiguities in an employer’s obligation to provide suitable seating to employees.  At issue was a provision in California’s Wage Orders that requires employers to provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.”  The Court held that “nature of the work” refers to the task performed at a given location where the employee is claiming a right to a suitable seat, instead of a holistic approach.  The Court also adopted a “totality of the circumstances” test to assess whether a work location “reasonably permits” suitable seating.


Kirby v. CVS Pharmacy, Inc. arises from a putative class actions filed by a cashier and bank teller. The plaintiffs alleged their employer violated the suitable seating provision in various California Wage Orders by failing to provide seats. The plaintiffs appealed unfavorable district court decisions to the Ninth Circuit Court of Appeals.  The Ninth Circuit requested clarification from the California Supreme Court on the proper interpretation of three areas of the suitable seating provision, including the meaning of “nature of work” and “reasonably permits,” and who bears the burden to show suitable seating is available.


In a unanimous opinion, the Court issued guidelines for California employers. The first issue the Court addressed was the scope of the phrase “nature of the work;”  specifically, whether the phrase refers to isolated tasks employees perform at a given location or to the entire range of duties performed during a shift.  The Court determined the phrase refers to a task performed at the given location where the employee is claiming a right to a suitable seat.  The Court emphasized that when evaluating whether the “nature of the work” reasonably permits the use of seats, employers must examine subsets of an employee’s total tasks and duties by location, such as those tasks employees perform at a retail cash register or at a bank teller window.  Employers should also consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.  In other words, assess whether the employer should provide a seat if a task at a given location reasonably permits sitting and the seat would not interfere with performance of any other tasks that may require standing.

The Court then addressed what factors courts should consider in evaluating whether the nature of the work “reasonably permits” sitting. The Court adopted an objective approach to this issue.  Courts should determine whether the nature of the work “reasonably permits” sitting based on the totality of the circumstances.  The inquiry should focus on the nature of the work, not an individual employee’s characteristics.  For example, an employer’s business judgment and the physical layout of the workplace are relevant factors.  The Court noted that an objective inquiry properly takes into account an employer’s reasonable expectations regarding customer service, and acknowledged an employer’s role in setting job duties.  The physical layout of a workspace may be relevant under certain circumstances; however, these factors are not necessarily dispositive under a totality of the circumstances test.

Finally, the Court determined whether a plaintiff must show that a suitable seat was available and not provided to the employee. In analyzing the relevant portions of the Wage Orders, the Court determined that the plaintiff does not bear the burden of proof.  According to the Court, no language exists to suggest that an employee must show that a particular type of seat would fulfill the requirement because the law expressly states that employees “shall be provided with suitable seats.”  An employer bears the burden of showing compliance is infeasible because no suitable seating exists.  As such, employers arguing that a suitable seat is not available bear the burden of proving unavailability.

Employer Takeaways

This case is another middle-ground case from the Supreme Court, and arguably a loss to employers hoping for more clarity. The “totality of the circumstances” test unfortunately is not a bright-line test and subject to interpretation.  California employers, judges and juries could view circumstances very differently.  What is clear, however, is that courts will carefully scrutinize the employer’s decision not to provide suitable seating.

Employers must carefully evaluate job tasks at a given location to determine whether it is reasonable to provide seats to employees. As detailed above, whether the work reasonably permits seating requires an analysis of the totality of the circumstances.  Notably, the Court was critical of denying an employee a seat “when he spends a substantial part of his workday at a single location, merely because his job duties include other tasks that must be done standing.”  Employers defending such claims, however, might find some comfort in knowing that their judgment is entitled to consideration under the “totality of the circumstances” test.

If you have any questions about this decision, please contact Johnny Colon at Johnny.Colon@jacksonlewis.com, or Cary Palmer in Sacramento at palmerc@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work.