Nykeya Kilby v. Cvs Pharmacy, Inc.
739 F.3d 1192
9th Cir.2013Background
- Kilby and Henderson involve California Wage Order 14(A) interpretation concerning mandatory seating when the nature of the work permits it.
- Kilby: CVS Clerk/Cashier spends ~90% at cash register; CVS policy denies seats to promote customer service.
- Henderson: JPMorgan tellers spend most time at teller station; some banks have varying layouts; JPMorgan policy denies seats.
- Lower courts adopted a holistic approach, considering duties, layout, business judgment, and other factors to determine seating obligation.
- Panel certifies questions to the California Supreme Court on the interpretation of “nature of the work,” “reasonably permits,” and “suitable seats,” and requests discretionary review under Rule 8.548.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Interpretation of “nature of the work.” | Kilby: discrete tasks; seating if any task can be performed seated. | CVS/JPMorgan: holistic approach; entire range of duties matters. | Certified questions sent to California Supreme Court; no merits decision. |
| What factors determine if seating is reasonably permitted? | Holistic factors not limited to business judgment. | Consider employer judgment, workplace layout, employee characteristics. | California Supreme Court to decide which factors apply. |
| Must a plaintiff prove existence of “suitable seats” where none are provided? | Seating may be required if any suitable option exists. | Proof may be unnecessary if no seats are provided. | Court defers to California Supreme Court on definition and proof of suitable seats. |
Key Cases Cited
- Martinez v. Combs, 231 P.3d 259 (Cal. 2010) (statutory construction aids may guide interpretation of wage orders)
- Wells v. One2One Learning Foundation, 141 P.3d 225 (Cal. 2006) (consideration of maxims of statutory construction in uncertain meaning)
- Doyle v. City of Medford, 565 F.3d 536 (9th Cir. 2009) (federal court approach to state-law issues in a novel context)
- Kremen v. Cohen, 325 F.3d 1035 (9th Cir. 2003) (comity and federalism favor deferring to state supreme court on novel issues)