In Kilby v. CVS Pharmacy, Inc., the Supreme Court today re-frames and answers questions posed by the Ninth Circuit about when California employers must provide suitable seating for their employees.  The unanimous opinion by Justice Carol Corrigan interprets wage orders, adopted by the now-defunded Industrial Welfare Commission, that provide, “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The court concludes:  (1) “The ‘nature of the work’ refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a ‘holistic’ consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift,” (2) “Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances” and “[a]n employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors,” and (3) “The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.”