Cal-Peculiarities: How California Employment Law is Different 2022 Edition

230 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com then should courts consider the entire range of duties if the employee spends more than one-half of the time on tasks that reasonably allow the use of a seat? (2) In deciding whether the nature of the work “reasonably permits” the use of a seat, should courts consider the employer’s business judgment, the physical layout of the workplace, and the employee’s physical characteristics? (3) Must the employee prove what a “suitable seat” would be? In 2016 the California Supreme Court, in Kilby v. CVS Pharmacy , answered these questions . 306 F irst, Kilby rejected both the employers’ argument that the entire job must be considered holistically and the plaintiffs’ argument that the job must be considered task by task. Kilby held instead that the proper focus is on the tasks performed at a given location. The trier of fact is to “consider whether it is feasible for an employee to perform each set of location-specific tasks while seated. ” 307 Second, Kilby ruled that while the employer’s business judgment, although not controlling, is a factor to consider in determining whether the nature of the work reasonably permits seating: “An objective inquiry properly takes into account an employer’s reasonable expectations regarding customer service and acknowledges an employer’s role in setting job duties. It also takes into account any evidence submitted by the parties bearing on an employer’s view that an objective job duty is best accomplished standing. ” 308 T he physical layout of a workplace is also relevant . 309 B y contrast, the employee’s physical characteristics were not relevant in the case presented, which did not raise any issue about potential reasonable accommodations needed for particular workers . 310 Third , Kilby held that the employer, not the employee, bears the burden of proof as to whether any particular seat is suitabl e. 311 Kilby also reached out to make a pro-employee decision on an issue not even before it. Kilby held that if other job duties take the employee to a location where he must work while standing, he would be entitled to a seat, under Section 14(B), during “lulls in operation. ” 312 Kilby encouraged more seating claims, while encouraging California employers to re-evaluate every location that requires standing to see if the nature of the work reasonably permits the use of seats at that location. The evaluation might involve an ergonomic study to determine the feasibility of adding seats. This development also highlights the importance of describing any standing requirement in the relevant job description. In 2022 the Court of Appeal addressed the issue of “lulls” under Section 14(b), in LaFace v. Ralphs Grocery Co. The trial judge, following a bench trial, found that a grocery store need not provide seating to its cashiers. The liability issue on appeal was whether the trial judge had erred in denying the plaintiff’s claim under Section 14(B ). 313 LaFace affirmed, holding that even when lulls occurred in a cashier’s primary duties, the cashiers were still expected to move about the store fulfilling various other tasks: “Sitting in or near the checkstands when there are no customers in line instead of cleaning, restocking, assisting other departments, or fishing [for customers], would interfere with the performance of the cashiers’ other duties. ” 314 LaFace stated that employees cannot create a “lull in operations” simply by choosing not to perform their job dutie s. 315 7.11.3 Workplace temperatures providing reasonable comfort Appearing in the wage orders right after the once-obscure Section 14 (on suitable seating) is the still moreobscure Section 15, which addresses workplace temperature: