Do cashiers and bank tellers get to sit while working?

9th Circuit asks California Supreme Court to decide. It's an ongoing legal battle in California, trying to discern whether specific employees get to sit down while they are working.

California Wage Order 4-2001 and California Wage Order 7-2001 both require that an employer provide “suitable seats” to employees “when the nature of the work reasonably permits the use of seats.”

Kilby v. CVS Pharmacy (9th Circ 12/31/2013) is a consolidation of two cases with pretty similar facts. One involves a cashier in a pharmacy and the other involves a teller in a bank. In each case the plaintiff brought a putative class action claiming that the respective employer violated the Wage Orders' requirement to provide "suitable seats." In each case the district court refused to certify a class, and an appeal was taken to the 9th Circuit.

The 9th Circuit - wisely - declined to immediately decide whether these employers had to provide these employees with suitable seats. Instead, the 9th Circuit certified some legal questions to the California Supreme Court. After all, it's California law, not federal law, so let the state court decide.

The certified questions relate to Section 14(A) of the Wage Orders:

1. Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe “nature of the work” holistically and evaluate the entire range of an employee’s duties?

a. If the courts should construe “nature of the work” holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?

2. When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?

3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute “suitable seats” to show the employer has violated Section 14(A)?