KILBY V. CVS

​Issue: Employment
Court: Supreme Court of California

Questions Presented:

I. 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? 

II. 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?

III. 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)?

RLC's Position:
The RLC filed a retail-only amici brief urging the California Supreme Court to recognize that standing is necessary for retail sales associates to perform the full range of important duties of the job, as well for customer service. The RLC asks the Court to use a holistic approach that gives deference to the employer's business judgment in determining whether a job reasonably permits the use of seats.

Case Outcome:
I. 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.

II. Whether the nature of the work reasonable permits sitting is a question to the 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.

III. If an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

Procedural History and Case Documents:

• Ninth Circuit requested California Supreme Court to accept the case to answer questions of law January 2014
• California Supreme Court certified the case March 2014
• California Supreme Court invited CA Department of Labor Standards Enforcement (DLSE) to file an ​amicus brief July 2015
• CA DLSE's Acceptance to Invitation to File Amicus Brief and Request for an Extension of Time August 2015
• CA Division of Labor Standards Enforcement Amicus Brief filed October 2015
• California Supreme Court's Decision issued April 2016

Please use the DOWNLOAD button below to access the RLC's Brief.