by Michael Kun

We have previously written in this blog about California’s unique “suitable seating” law, which requires some employers to “provide” “suitable seating” to some employees where “the nature of the work reasonably permits the use of seats.”

The use of multiple sets of quotation marks in the previous sentence should give readers a good idea about just how little guidance employers have about the obscure law.

The law was originally intended to provide some comfort to individuals working on production lines and performing similar tasks. Few lawsuits were ever filed alleging violations of the law until a published California Court of Appeal decision about “suitable seating” awakened the plaintiffs’ bar to yet another ground for them to file class action lawsuits against California employers.

Not unexpectedly, that has led to the filing of a great many class actions in recent years alleging that employers in a wide variety of businesses had failed to provide suitable seating.

Plaintiffs in these class actions often seek tens of millions of dollars in connection with the alleged violation of the suitable seating law, even where no one ever requested a seat or where the jobs are ones that are typically performed by individuals while standing.

And those cases have invariably involved disputes regarding which employers and employees are covered by the law, what the “nature of the work” is, whether the nature of the work “reasonably” permits setaing, and what it means to “provide” suitable seating – as well as what “suitable seating” even means.

The Ninth Circuit has now essentially thrown up its hands. In two “suitable seating” cases before it -- Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA– the Court has asked the California Supreme Court to clarify the law.

Specifically, the Ninth Circuit has asked the California Supreme Court to clarify whether the term “nature of the work” refers to individual tasks that an employee performs during the day, or whether it should be read “holistically” to cover a full range of duties.

It has also asked the California Supreme Court to clarify whether an employer's business judgment should be considered in determining whether the nature of the work “reasonably permits” the use of a seat, as well as the physical layout of the workplace and the employee’s physical characteristics.

Finally, it has asked the California Supreme Court to clarify whether the employee must prove what would constitute a “suitable seat” to prevail.

Should the California Supreme Court agree to the Ninth Circuit’s request to clarify these issues, employers in California may finally have much-needed guidance on this obscure law, allowing them to alter their practices as necessary and avoid these class actions.

Should the California Supreme Court decline the Ninth Circuit’s request, the confusion and ambiguity about this law will likely continue, as will the filing of class actions alleging that employers have not complied with it.

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