January 3, 2014
The Ninth Circuit sent the California Supreme Court a New Year’s Eve request for help in deciphering state employment law. In a single opinion concerning two cases — Kilby v. CVS Pharmacy, Inc. and Henderson v. JPMorgan Chase Bank NA — the federal court asked for help interpreting two California Wage Orders, which “require that an employer provide ‘suitable seats’ to employees ‘when the nature of the work reasonably permits the use of seats.’ ” Under rule 8.548 of the California Rules of Court, the Ninth Circuit asked for answers to these questions:
“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) [of the orders]?”
The Ninth Circuit panel concluded that they “do not think it is appropriate to substitute [their] judgment for that of the California Supreme Court in interpreting California Wage Orders that could have far-reaching effects on California’s citizens and businesses.”
[Update: The Supreme Court has at least twice turned down petitions for review in seating-order cases. Both times, Justice Baxter voted for review. The Ninth Circuit does much better than litigants do in persuading the Supreme Court to take a case, so, this time, there might be at least three justices to join Justice Baxter.]