Kilby v. CVS Pharmacy, Inc., S215614.
| Decision Date | 04 April 2016 |
| Docket Number | No. S215614.,S215614. |
| Citation | 201 Cal.Rptr.3d 1,63 Cal.4th 1,368 P.3d 554 |
| Court | California Supreme Court |
| Parties | Nykeya KILBY, Plaintiff and Appellant, v. CVS PHARMACY, INC., Defendant and Respondent. And Consolidated Case. |
Kevin J. McInerney, San Diego; Arias Ozzello & Gignac, Mark A. Ozzello, Mike M. Arias, Los Angeles; Capstone Law, Raul Perez, Suzy E. Lee, Los Angeles; Sullivan Law Group, Eric K. Yaeckel, Altshuler Berzon, Michael Rubin, Connie K. Chan, San Francisco; Dostart Hannick & Coveney, James T. Hannink, Zach P. Dostart, San Diego; Clapp Legal, James F. Clapp, San Diego; Righetti Glugoski and Matthew Righetti, San Francisco, for Plaintiffs and Appellants.
Law Offices of Miles Locker and Miles E. Locker, San Francisco, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiffs and Appellants.
Barbara A. Jones and Dan Kohrman for AARP as Amicus Curiae on behalf of Plaintiffs and Appellants.
Orrick, Herrington & Sutcliffe, Timothy J. Long, Sacramento, Michael D. Weil and Leah L. Spero, San Francisco, for Defendant and Respondent CVS Pharmacy, Inc.
Thomas M. Peterson, San Francisco; Sam S. Shaulson ; Morgan, Lewis & Bockius, Carrie A. Gonell, John D. Hayashi and Alexander L. Grodan, Irvine, for Defendant and Respondent JPMorgan Chase Bank, N.A.
Munger, Tolles & Olson, Malcolm A. Heinicke, San Francisco, and Katherine M. Forster, Los Angeles, for Chamber of Commerce of the United States of American and California Chamber of Commerce as Amici Curiae on behalf of Defendants and Respondents.
Paul Hastings, Paul W. Cane, Jr., Rishi N. Sharma, San Francisco, Paul Grossman, Los Angeles, and Leslie L. Abbot for California Employment Law Council as Amicus Curiae on behalf of Defendants and Respondents.
Fox Rothschild, David F. Faustman and Cristina K. Armstrong, San Francisco, for Retail Litigation Center., Inc., and California Retailers Association as Amici Curiae on behalf of Defendants and Respondents.
Sheppard, Mullin, Richter & Hampton, David B. Chidlaw, Samantha D. Hardy, Guylyn R. Cummins and Daniel F. De La Cruz, San Diego, for National Retail Federation as Amicus Curiae on behalf of Defendants and Respondents.
Gibson, Dunn & Crutcher, Rachel S. Brass, San Francisco, Theodore J. Boutrous, Jr., Catherine A. Conway and Jesse A. Cripps, Los Angeles, for Wal–Mart Stores, Inc., as Amicus Curiae on behalf of Defendants and Respondents.
Robert N. Villalovos, Sacramento, for Division of Labor Standards Enforcement, Department of Industrial Relations as Amicus Curiae.
CORRIGAN
, J.
The Ninth Circuit has certified questions1 involving California wage order requirements that an employer provide suitable seating for employees under certain circumstances. The wage orders at issue here state that "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." (Cal.Code Regs. tit. 8, §§ 11040, subd. 14(A)
(Wage Order No. 4–2001), 11070, subd. 14(A) (Wage Order No. 7–2001).) We frame the Ninth Circuit's questions as follows.2
(1) Does the phrase "nature of the work" refer to individual tasks performed throughout the workday, or to the entire range of an employee's duties performed during a given day or shift?
(2) When determining whether the nature of the work "reasonably permits" use of a seat, what factors should courts consider? Specifically, are an employer's business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
(3) If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?
As explained in greater detail below, we answer those questions as follows.
(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. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer's business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee's characteristics.
(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.
The certified questions arise in two related federal appeals. The cases involve application of identical seating provisions contained in wage orders promulgated by the Industrial Welfare Commission (the IWC) in the context of two different industries.3
Nykeya Kilby worked for eight months as a customer service representative for CVS Pharmacy, Inc. (CVS). During both the interview and training process, CVS told Kilby it expected her to stand while performing her various duties. Although actual duties varied by both store and shift, Kilby's duties included operating a cash register, straightening and stocking shelves, organizing products in front of and behind the sales counter, cleaning the register, vacuuming, gathering shopping baskets, and removing trash. CVS did not provide Kilby a seat for these tasks.
Kilby filed a federal class action lawsuit alleging CVS violated Wage Order No. 7–2001, applicable to the mercantile industry. Section 14, subdivision (A) (section 14(A)) of that order provides: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." (Wage Order No. 7–2001, § 14(A).) On the other hand, section 14, subdivision (B) (section 14(B)) of the wage order states: "When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties." (Wage Order No. 7–2001, § 14(B), italics added.) The district court concluded that sections 14(A) and 14(B) were mutually exclusive. It reasoned that section 14(A) applied when an employee was actually engaged in work, while section 14(B) applied when an employee was not actively working. Thus, it concluded that in evaluating the " ‘nature of the work’ " under section 14(A), an employee's "entire range of assigned duties" must be considered to determine whether the work permits the use of a seat or requires standing. (Kilby v. CVS Pharmacy, Inc. (S.D.Cal.2012) 2012 WL 1969284, *5, 2012 U.S.Dist. LEXIS 76507, *14
.) It noted "there is no dispute that many of the duties performed by Clerk/Cashiers at CVS require the employee to stand while performing them...." (Ibid. ) Accordingly, it granted summary judgment. Kilby appealed.
Kemah Henderson and three other bank tellers (collectively, Henderson) worked at JPMorgan Chase Bank (Chase) branches. They filed a class action suit against Chase for violating the suitable seating provision of Wage Order No. 4–2001, section 14, subdivision (A) (section 14(A)), applicable to " professional, technical, clerical, mechanical, and similar occupations." (Wage Order No. 4–2001, subd. 1.) This provision mirrors Wage Order No. 7–2001, section 14(A) at issue in Kilby. (See Wage Order No. 4–2001, § 14(A).) Chase bank tellers had duties associated with their teller stations, including accepting deposits, cashing checks, and handling withdrawals. They also had duties away from their stations, such as escorting customers to safety deposit boxes, working at the drive-up teller window, and making sure that automatic teller machines were working properly. These duties varied depending on the shift or branch location and whether the employee was a lead or regular teller. Based on these differences, the district court denied class certification. (Henderson v. JPMorgan Chase Bank (C.D.Cal.2013) 2013 U.S.Dist. LEXIS 185099; see Kilby v. CVS Pharmacy, Inc. (9th Cir.2013) 739 F.3d 1192, 1194–1195
.) Henderson appealed.
Over a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the IWC, giving it authority to investigate various industries and promulgate wage orders establishing minimum wages, maximum work hours, and conditions of labor. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1026, 139 Cal.Rptr.3d 315, 273 P.3d 513
(Brinker ); see Cal. Const. art. XIV, § 1 ; Lab.Code § 1173 [duties of the IWC].) "[I]n fulfilling its broad statutory mandate, the IWC engages in a quasi-legislative endeavor, a task which necessarily and properly requires the commission's exercise of a considerable degree of policy-making judgment and discretion." (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d 690, 702, 166 Cal.Rptr. 331, 613 P.2d 579 (Industrial Welfare Com. ); see Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 800, 85 Cal.Rptr.2d 844, 978 P.2d 2.)
"We have explained that ‘wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the IWC.’ [Citation.] The IWC, a state agency, was empowered to issue wage orders, which are legislative regulations specifying minimum requirements with respect to wages, hours, and working conditions.
[Citations.] Of the 18 wage orders in effect today, ‘16 cover[ ] specific industries and occupations, one cover[s] all...
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Wage and Hour Case Notes
...affirming the trial court's ruling, the Court of Appeal relied on the California Supreme Court's guidance in Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016), that section 14(B) entitles an employee to a seat during "lulls in operation" when the employee is still working but is not activel......