Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1

Background

Two consolidated federal class actions (Kilby v. CVS; Henderson v. JPMorgan Chase) challenged IWC wage order seating provisions requiring employers to provide "suitable seats when the nature of the work reasonably permits."
Kilby: CVS customer service worker who performed register work and other tasks claimed CVS did not provide a seat for duties that could be done seated; district court granted summary judgment for CVS treating the job "holistically."
Henderson: bank tellers at Chase performed both station-based duties and mobile duties; class certification denied below and issue on when seats are required was certified.
Ninth Circuit certified three questions to the California Supreme Court about (1) the meaning of "nature of the work" (task-by-task vs. holistic), (2) relevant factors for whether work "reasonably permits" sitting (including business judgment, workspace layout, employee characteristics), and (3) whether plaintiffs must prove a suitable seat exists when employer provided none.
The California Supreme Court framed a location- and task-based inquiry: examine tasks performed at a discrete location (grouped together), evaluate feasibility under the totality of circumstances, and place burden on employer to prove no suitable seat is available.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Does "nature of the work" mean individual tasks or the employee's entire shift/job?	Kilby/Henderson: focus on tasks at issue; employees entitled to seats for tasks that can reasonably be done seated.	CVS/Chase: holistic, consider entire range of duties across a shift to decide entitlement.	"Nature of the work" is location- and task-focused: consider tasks performed at the specific location for which seating is sought, not an all-or-nothing holistic shift-wide analysis.
2. What factors determine whether work "reasonably permits" use of seats (employer business judgment, layout, employee characteristics)?	Plaintiffs: inquiry should be objective and based on physical requirements of tasks; business preferences and employee traits should not govern.	Defendants: business judgment and workspace layout are relevant and deserve deference; employee physical differences matter.	Use an objective totality-of-the-circumstances test. Employer business judgment and physical layout are relevant but not dispositive; individual employee characteristics are not the focus. Feasibility and interference with performance are key.
3. If employer provides no seat, must plaintiff prove a suitable seat exists?	Plaintiffs: burden should be on employer to provide seating; employees lack information about suitable seats.	Defendants: plaintiff must show a suitable seat existed and was withheld; "suitable seat" is independent element.	Employer bears burden to show unavailability or infeasibility. If nature of work permits seating, employer must provide suitable seats; plaintiff need not identify a specific seat.

Key Cases Cited

Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004 (2012) (framework for interpreting IWC wage orders and statutory/regulatory dignity)
Industrial Welfare Com. v. Superior Court, 27 Cal.3d 690 (1980) (background on IWC's regulatory role and wage orders)
Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015) (IWC wage orders remain in effect despite legislative defunding)
Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557 (1996) (limits on deference to DLSE enforcement policies)
Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000) (DLSE interpretations may be persuasive though not controlling)
Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014) (PAGA private attorney general context on labor enforcement)
Arias v. Superior Court, 46 Cal.4th 969 (2009) (legislative intent behind PAGA enforcement)
Christopher v. SmithKline Beecham Corp., 132 S.Ct. 2156 (2012) (agency enforcement decisions may reflect factors unrelated to legal merits)