KILBY v. CVS PHARMACY

Appellant, JP Morgan Chase Bank, Answer Brief on the Merits

Cal.June 11, 2014

IN THE SUPREME COURT OF CALIFORNIA Case No. 8215614 NYKEYAKILBY, JUN 8 1 AON Plaintiffand Petitioner, V. CVS PHARMACY,INC., one Defendant and Respondent, KEMAH HENDERSON, TAQUONNA LAMPKINS, CAROLYN SALAZAR, and TAMANA DALTON, Plaintiffs and Petitioners, V. JPMORGAN CHASE BANK,N.A. Defendant and Respondent. ON REQUEST TO DECIDE CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DOCKET NOs. 12-56130/13-56095 ANSWERBRIEF OF RESPONDENT JPMORGAN CHASEBANK,N.A. MORGAN,LEWIS & BOCKIUS LLP SAM S. SHAULSON (PRO HACVICE) CARRIE A. GONELL (SBN 257163) 101 PARK AVENUE JOHN D. HAYASHI (SBN 211077) NY, NY 10178-0060 ALEXANDER L. GRODAN (SBN 261374) TEL: 212.309.6000; FAX: 212.309.6001 5 PARK PLAZA, SUITE 1750 THOMASM.PETERSON (SBN 96011) IRVINE, CA 92614 ONE MARKET, SPEAR STREET TOWER TEL: 949.399.7000; FAX: 949.399.7001 gan FRANCISCO, CA 94105 TEL: 415.442.1000; FAX: 415.422.1001 Attorneysfor Defendant-Respondent JPMORGAN CHASE BANK, N.A. IN THE SUPREME COURT OF CALIFORNIA Case No. 8215614 NYKEYA KILBY, Plaintiffand Petitioner, Vv. CVS PHARMACY,INC., Defendant and Respondent, KEMAH HENDERSON, TAQUONNA LAMPKINS, CAROLYN SALAZAR, and TAMANA DALTON, Plaintiffs and Petitioners, V. JPMORGAN CHASE BANK,N.A. Defendant and Respondent. ON REQUEST TO DECIDE CERTIFIED QUESTIONS FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DOCKET Nos. 12-56130/13-56095 ANSWERBRIEF OF RESPONDENT JPMORGAN CHASEBANK,N.A. MOorGAN, LEWIs & Bocktus LLP SAM S. SHAULSON (PRO HAC VICE) CARRIE A. GONELL (SBN 257163) 101 PARK AVENUE JOHN D, HAYASHI (SBN 211077) NY, NY 10178-0060 ALEXANDER L. GRODAN (SBN 261374) TEL: 212.309.6000; FAx: 212.309.6001 5 PARK PLAZA, SUITE 1750 THOMASM.PETERSON(SBN 9601 1) IRVINE, CA 92614 ONE MARKET, SPEAR STREET TOWER TEL: 415.442.1000; FAx: 415.422.1001 Attorneysfor Defendant-Respondent JPMORGAN CHASE BANK, N.A. I. I. IV. VI. TABLE OF CONTENTS Page INTRODUCTION000... ccccccccccccesesseeeeeesceeeeeaeessaeeeseeesesseeeeeseeesaecesseeeseesseeenes 1 REGULATORY FRAMEWORK AND HISTORY......cccccccccceseeeseeesessenes 4 PROCEDURAL AND FACTUAL BACKGROUND...... oc cccccccceetsetseteees 9 A. Procedural History..........ccccccsccesseceesseceesssseecesseesseeeceseecesseecessseeenseseas 10 B. Layout and Design of Different Chase Branchesand Teller Areas Prevent And Limit The Use of Seats in Multiple Ways......... 11 C. Chase Tellers Perform A Wide Variety of Job Functions that Require Standing. 2.0...ce ececesscesceeeceeceeneceesesecseeseeseeeeeeseeeeeseseeeneenes 13 D. Time Spentat the Teller Station Varies Widely and This PhenomenonPrevents and Limits The UseofSeats..................c00 16 E. The Work of a Chase Teller Requires Standing..............ccccceseeseeees 17 F. The District Court Denied Class Certification ..............ccccceeeeseeeeeeees 19 CERTIFIED QUESTION |: THE “NATURE OF THE WORK” UNDER SECTION 14(A) REQUIRES A HOLISTIC ASSESSMENT OF THE JOB...ecceccccccssceseeseeesseeseesneccnceaeeesseeceseeasesesenseseseaseseesessaeeeenees 22 A. Section 14 Requires a Holistic Approach BecauseIt Assigns Different Meaningsto “Nature of the Work”and “Duties.”............. 23 B. The Established Definition of “Nature of the Work” In Other Parts of the Same Wage Order Calls for a Holistic Analysis When Interpreting Section 14.00.00... ceeceeeseessesseeseesseeesecesecsseeesseseens 26 C. Dictionary Definitions of “Work”and “Nature” Support a Holistic Approach .........eccesesessecsecceceesseeeeeceeseesseseeceeesseeseseeesseeseseens 28 D. The Regulatory History Supports A Holistic Interpretation of Section 14’s Seating Requirements. ............ccccccsscesseesessssessecessecseeees 30 CERTIFIED QUESTION 1(A): SECTION 14 DOES NOT REQUIRE A TIME QUANTIFICATION ANALYSIS. 0... ceeeeseesseseceeeaeeeseeensesees 34 QUESTION 2: THE COURT MUST CONSIDER BUSINESS JUDGMENT AND PHYSICAL LAYOUT OF THE WORKPLACE....... 38 VI. VIII. TABLE OF AUTHORITIES Page A. Employer Business Judgment and Expectations Are Important Factors Relevant to Whether the Nature of the Work Reasonably Permits the Use of Suitable Seats. ........... cc cceeseeeseees 39 B. The Physical Layout of the Workplace Is Relevant to Whether the Nature of the Work Reasonably Permits the Use of Suitable SCatS oc. ceceececsecssecececccccccecscccsccsececccseccecccccceccvscecesccccsseesecssccssstssseteesecers 42 QUESTION 3: PLAINTIFFS BEAR THE BURDEN OF PROOF AS TO WHETHERA SEATIS “SUITABLE.” oooeccecceccccceeceeceeees 45 CONCLUSIONWeecececsecscereneestenseeesacesseeseeseeeeaeeseessaessaesasenseaeeaeenseeees 48 TABLE OF AUTHORITIES Page FEDERAL CASES Abdullah v. U.S. Sec. Associates, Inc. (9th Cir. 2013) TB F.3d 952 occ eccecescssesseeceesecsseesscessecenceneceaecseceeseecseesnecseeessaeeeeeeneenanesees 26, 27 Aguirre v. DSW, Inc. (C.D. Cal. Jan. 19, 2012) 2012 U.S. Dist. LEXTS 62984 ooo. ccccescescesceseesseeeessesseneesecseeseseeeesessseeeseees 26 Auerv. Robbins (1997) S19 U.S. 452... ceeccccceseesecesseeeessceessnneecseseecseeeesseeceseaeeessnseesnsesneeseeeeeeeseaeseeseesaeeeses 8 Campbell v. PriceWaterhouseCoopers, LLP (9th Cir. 2011) 642 F.3d 820 ooo. eeecccsessenscsseesneesnesseescsecsnensecseesenesnseeeesseeenseeseeeseseesaeeeseeeseesessees 35 Echavez v. Abercrombie and Fitch Co. Inc. (C.D.Cal. Aug. 13, 2013, No. 11-cv-9754-GAF) 2013 WL 7162011 ooocece ccesseeccecesscecessseeecessssceescesseecssesceeseresees 24, 25, 30 Gallardo v. AT&TMobility, LLC (N.D. Cal. Mar. 29, 2013) 947 F. Supp. 1128.0... eeccceesssecssceecessneessnecessneeessneeessseeessseeseessneesssneseseeseeaeees 46 Garvey v. Kmart Corp. (N.D. Cal. Dec. 18, 2012, No. C 11-02575 WHA) 2012 WL 6599534, appeal dismissed (Feb. 24, 2014)...ceeeseesseeesseeees passim Kilby v. CVS Pharmacy, Inc. (S.D. Cal. Apr. 4, 2012, No. 09CV2051-MMA KSC) 2012 WL 1132854 oooeecesceeneeseecenecesecsecesecsaeeaeceacessneeaesseeeeseeseeseessseeeeenes 46 Kilby v. CVS Pharmacy, Inc. (S.D. Cal. May 31, 2012, No. 09-cv-02051- MMA-KSC) 2012 WL 1969284 oooecceseesseneceeseeeeesseeteeesseseeeesaeesseeeaesaeeeeseeeeneneeeses passim Sorenson v. Sec'y ofTreasury of U.S. (1986) 475 U.S. 851, 860 [106 S. Ct. 1600, 1606, 89 L. Ed. 2d 855]... 28 United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l. Union, AFL-CIO, CLC v. ConocoPhillips Co. (C.D. Cal. Mar. 16, 2009, No. 08-CV-2068-PSG-FFMx) 2009 WL 734028 oo.eeeeccecsneesseeeseecececseersaeecsaeeeeeeesaeessaeesesseeeesseeseeeesseeeesns 27 -iii- TABLE OF AUTHORITIES CALIFORNIA CASES Arias v. Superior Court (2009) A6 Cal.4th 969oiececeecsecseeneseenecseeeesseseessesseeseeeneneeessereseens Bright v. 99c Only Stores (2010) 189 CabApp.4th 1472 ooo ccececccsessessesssesecsecesesseeesesscsessessscsseeneess Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004ooccceeceeeceseseeeceneseeeesseeeecseneeseeseeseereeeenes California Assn. ofPsychology Providers v. Rank (1990) ST Cal.3d Loiccscesscseseeceesseceeceessessesesseesesaceseeaeeeesensessesseeseees Cash v. Winn (2012) 205 Cal. App. 4th 1285 (2012) ..cccccccsssccsssseescsecesssssssseesseesesssseeeeess Dayv. City ofFontana (2001) 25 Cal.4th 268 oo. cccccsccsccsceseceeeseceeenseeseeesecseeseeseesesseseeseesenseeeens DeVita v. Cnty. ofNapa (1995) Q CalAth 763eeeeeeceesecsecesececeeeceeeesessesseessesseeesseesessesseesaeeneens Harris v. Superior Court (2011) 53 Cal.4th 170oeceeceeeeseeseeeeeeeeeaeeseeeeeseseeeesseseseesaseseeeeens Jevne v. Superior Court (2005) 35 Cal4th 935 oooeeccesceseesereeeeeseeseeseeseceecseeeseeeeseesessesseeeseeaeens Lee v. Interinsurance Exch. (1996) 50 Cal-App.4th 694 ooo. ecceccsecssessesseeessceseenseesseeseesseeaeesaeseseeeeees Morillion v. Royal Packing Co. (2000) 22 Cal4th 575 oooeeeecesecseeneesseeseeseeaececseeseesseseseesseeseeseseseeaeens Moyer v. Workmen's Comp. Appeals Bd. (1973) LO Cal.3d 222 ieeecsccsecescseeeneseeeeeseseeseseeseeeseeseeeeteeseesesaeeaesas Page seseeesseeeaeeeaeeeenees 7 seveseeseeeeeneceaeenees4 eseeneeeeeeonees 6, 31 sesveceenseeatseeeees 23 beseesseeeenseeseeees 22 seessaeesseneeeeeees 22 seseaaeeneeseesaeeaee 23 seceseeeseeneeeeeaeeeees 6 seseeeetserseeeteneenees 8 seseesseeeseeeeenees 4] seseeeeeaecaeeseeseeeees 6 veceveeesestaeeeees 23 TABLE OF AUTHORITIES Page People v. Stewart (2004) 119 Cal.App.4th 163 oo... ccccccccsccesesssesseeessscessessecssecsneeseesseessaeeseeseeeseeeeseeenasenaees 24 Romanov. Mercury Ins. Co. (2005) 128 Cal.App.4th 1333 oo... ceccccsscsssesscesceseescesseeseecenecseesnessaeeseesaeesseeeeneesaeeeeees 23 Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal. App. 4th 1658 oo... cccccccscesscessseesceeeeeeseneeeeaesaneceeesaeeaeeeeeseseaeeteeeaeenres 45 FEDERAL STATUTES Federal Rule of Civil Procedure 23 ..........ccccccccccssssseccceecessssseecececceseessseaeseseneees 19, 20 CALIFORNIA STATUTES AND REGULATIONS Cal. Code Regs., Title 8, § 11040, subd. 14.0...eceeeeeeeseeeeeeeeneeessneeaes passim Labor Code §§ 2698, €t S€G....cccccscccssssssscesssceseesceseeeaneceseeeseeeenseeeeeeesnecsaeeesaeeceanecsaeeeses7 OTHER STATUTES 29 C.F.R. § 541.207(g) (2000) 0... cece ccecsccssesseeeeseeceeecseseseesaeecseecenesseeseesnesnesseeens 36 Evid. Code § 500 .......cccecccsccessceeseeseceeeseeeceecseesessesseeeseesseesseesneecseesenesaeesaceeseecanesaeeas 45 I. INTRODUCTION The Ninth Circuit has certified to this Court three questions of California law concerning the meaning of Section 14 of California Industrial Welfare Commission (“IWC”) Wage Order 4-2001 (“Wage Order’), which provides: 14. Seats (A) All working employeesshall be provided with suitable seats when the nature ofthe work reasonably permits the use ofseats. (B) When employeesare not engagedin the active duties of their employment and the nature ofthe work requires standing, an adequate numberofsuitable seats shall be placed in reasonable proximity to the work area and employeesshall be permitted to use such seats whenit does not interfere with the performanceoftheir duties. (Cal. Code Regs., tit. 8, § 11040, subd. 14 (emphasis added).) Response to Certified Question 1: Using establishedrules of statutory construction, “nature of the work” must be defined holistically, taking into account not only the entire range of an employee’s duties, but “all available facts and conditions” regarding the employee’s job. This interpretation follows the plain meaning of the words used. Section 14 assigns different meaningsto “duties” and “nature of the work,” which meansthat the two are not synonymous. Indeed, job “duties” are a subset of the broader, holistic inquiry necessary to identify the “nature of the work.” This holistic interpretation is also supported by customary and usual definitions of the words “nature” (“the inherent character or basic constitution of a person or thing: essence”) and “work”(“the labor, task, or duty 1 DB2/ 25070591.31 that is one’s accustomed meansoflivelihood”), as well as the regulatory history of Section 14, which showsthat the terms “reasonably permits” and “suitable seats” were addedto Section 14 in furtherance of a declared regulatory intent that Section 14 be “moreflexible and more subject to administrative judgmentas to whatis reasonable.” Response to Certified Question l(a): Petitioners and Chase agree that Section 14 does not require a quantitative analysis to determine whetherthe nature of the work reasonably permits the use of suitable seats. Other sections of the Wage Orderexpressly require courts to quantify the amountoftime spent on particular duties, but Section 14 noticeably doesnot. Responseto Certified Question 2: The “nature of the work” requires that a court consider“all available facts and conditions” regarding the employee’s work, including the employer’s business judgment, the physical layout of the workspace, worker safety, and other relevant constraints on the actual deploymentofseats in the workplace. As the Labor Commissionerhas explained, the Division of Labor Standards Enforcement (“DLSE”), which is primarily responsible for enforcing the WageOrder,assesses the “nature of the work” by applying “‘a reasonableness ' Statement of Findings by the Industrial Welfare Commission ofthe State of California, In Connection with the Revision in 1976 of Its Orders Regulating Wages, Hours and Working Conditions (Aug. 13, 1976) (“1976 Statement of Findings”), at p. 15, Plaintiff-Appellant’s Request for Judicial Notice, Ex. 2, Kilby 9th Cir. Dkt. No. 10-1 (“Kilby RJN”). DB2/ 2507059131 standard” and considers “all available facts and conditions” regarding each employee’s job, including: (1) the physical layout of the workplace; (2) the employee’s job functions; (3) the expected job duties as defined by the employer; (4) the views of the employeras to the nature of the work; (5) the employer’s business judgment; and(6) existing or historical industry or business practices.’ This long-standing, multi-factor test properly defines “nature of the work.” Response to Certified Question 3: Plaintiff must provethat a “suitable seat” is available to be provided before the employer can be foundto violate Section 14(A) — even if an employerhas not provided any seats to employees. Under established California law, plaintiff must prove all elements of each asserted claim. The existence of a “suitable” seat is one of the essential elements necessary to establish a Wage Orderviolation. In answering the Ninth Circuit’s questions, this Court should makeclear that the nature of an employee’s workis interpreted holistically, in keeping with how Section 14 has long been administered by the DLSE andinterpreted by the courts. * AmicusBrief of the California Labor Commissioner, on Behalf of the Division of Labor Standards Enforcementand the California Labor and Workforce Development Agency (“Labor Commissioner Amicus Brief”), Chase’s Ninth Circuit Supplemental Excerpts of Record (“SER”) at 28-33. Hereafter, “ER” and “Kilby ER”shall refer to the Excerpts of Record filed by Petitioners with the Ninth Circuit in Henderson and Kilby, respectively. “CVS SER”shall refer to the Supplemental Excerpts of Record filed by CVS with the Ninth Circuit. DB2/ 2507059131 This interpretation properly applies Section 14’s requirements,yet is flexible enoughto allow courts to apply a requirement originally conceived nearly a century ago to the thousandsofdifferent jobs in California’s ever-changing economy. II. REGULATORY FRAMEWORK AND HISTORY Section 14 applies to employees in “Professional, Technical, Clerical, Mechanical and Similar Occupations,” including “tellers.” (Wage Order, § 2(O).) The current version of Section 14 was adopted in 1979. (Bright v. 99c Only Stores (2010) 189 Cal.App.4th 1472, 1478.) Seating requirements were first adopted in the early 20th century, and were originally applicable to women and children. (Kilby v. CVS Pharmacy, Inc. (S.D. Cal. May 31, 2012, No. 09-cv-02051-MMA-KSC) 2012 WL 1969284, *4.) The IWC’sseating requirements have been amendedoverthe years. As Petitioners note, early enactments were very specific, including requirements for “at least one seat for every two women”; seats provided had to be adjustable so that the position of workers and their work tables or machines would be “substantially the same”; and the work tables had to be designed suchthat “there are no physical impedimentsto efficient work in either a sitting or standing position.” (AOB-25, Kilby ER79.) Even when Section 14 contained greater specificity, whethera seat was required turned on “the judgmentofthe [[WC].” (/bid.) 4 DB2/ 25070591.31 These specific requirements were amended in the 1947 Wage Order, which broadly declared, “Suitable seats shall be provided for all female employees. When the nature of the work requires standing, an adequate numberofsaid seats shall be placed adjacent to the work area and employeesshall be permitted to use such seats when not engagedin the active duties of employment.” (Kilby ER84.) Qualifying language was addedto the seating requirements in the 1968 Wage Order, which added the clause “when the nature of the work permits.” (Kilby ER104 [“All working female employees shall be provided with suitable seats when the nature of the work permits.”].) The 1976 Wage Order added another modifier -~ “reasonably” — to Section 14(A), thereby causing Section 14(a) to read as it does now. (Kilby ER107 [“All working employeesshall be provided with suitable seats whenthe nature of the work reasonably permits the use ofseats.”]).° This history of revision shows that the IWC madeseating requirements more flexible by adding language linking seating requirements to reasonableness and to the availability of suitable seats. This flexibility allowed Section 14 to be intelligently applied in a modern economy,wherejob positions and job requirements vary and evolve. As the IWC declared in its 1976 Statement of Findings, “the Commission has madeits requirement more flexible and more * Section 14(B) was further modified in the 1980 Wage Orderto include the addition of the clause “whenit does notinterfere with the performanceoftheir duties" at the end of subdivision (B). (Kilby ER111.) 5 DB2/ 250705913] subject to administrative judgmentas to whatis reasonable.” (1976 Statement of Findings, at p. 15, Kilby RJN Ex.2.) In an opinion letter’ dated December28, 1979, Margaret T. Miller, Secretary-Consultant to the DLSE,explained that compliance with Section 14 could only be determined by “[a]n investigator from the Division of Fair Labor Standards Enforcement [who] would have to make the judgments involved.”” The IWClater explained, “the Commission’s intent in Section 14” was “to minimize the need to apply for special exemption. With this provision,it is up to the Division of Labor Standards Enforcement (DLSE)to inspecta facility and consider its particular situation.”° A common theme emerges: repeated recognition that determinations about enforcement of the seating provisions of the Wage Order should turn on * As this Court has recognized, the DLSE's opinions and adviceletters, “while not controlling upon the courts by reason oftheir authority, do constitute a body of experience and informed judgmentto which courts andlitigants may properly resort for guidance.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1029 fn.11; Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 584 [relying on DLSEopinionletters to inform its interpretation ofthe'WCs wage orders]; Harris v. Superior Court (2011) 53 Cal.4th 170, 190 [“Although we generally give DLSEopinionletters ‘consideration and respect,’ it is ultimately the judiciary's role to construe the language [of the wage orders].]’’). > Dec. 28, 1979 Letter from Margaret T. Miller, Secretary-Consultantofthe Division of Labor Standards Enforcement, Kilby ER174-75. ° May4, 1982 Letter from Margaret T. Miller, Executive Officer of the Industrial Welfare Commission, Kilby ER181. 6 DB2/ 25070591 .31 administrative judgment by those with special expertise to address California’s changing and diverse California workforce. The DLSEhas applied such judgmentin specific cases. For example, the DLSErecognized in 1986 that Section 14 “was not intended to cover those positions where the duties require employeesto be on their feet, such as salespersons in the mercantile industry.”’ Until recently, the DLSE had exclusive jurisdiction to enforce the Wage Order. That changed in 2003, when the Legislature enacted the Labor Code Private Attorneys General Act of 2004 (“PAGA”), Labor Code. sections 2698, et seq., which created a private right of action allowing aggrieved employeesto sue and recover civil penalties. A plaintiff bringing suit under PAGA “doesso as the proxyor agentofthe state's labor law enforcement agencies,” and “represents the same legal right andinterest as state labor law enforcement agencies—namely, recovery ofcivil penalties that otherwise would have been assessed and collected by the Labor Workforce Development Agency.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) ’ December5, 1986 letter from Albert J. Reyff, Chief Deputy Labor Commissioner, SER35. DB2/ 25070591.31 In enforcing Section 14, the DLSEhasutilized a multi-factor analysis to determineif “the nature of the work” reasonably permits the use of a seat. As explained in the Labor Commissioner’s Amicus Curiae Brief in Garvey v. Kmart: If called upon to enforce Section 14, DLSE would apply a reasonableness standard that would fully considerall existing conditions regarding the nature of the work performed by employees. Upon an examination ofthe nature of the work, DLSE would determine whether the work reasonably permits the use of seats for working employees under subsection (A) of Section 14... ...LSE would considerall available facts and conditions, including but not limited to the physical layout of the workplace and the employee's job functions, to determine compliance with Section 14 requirements. In this regard, DLSE recognizes the IWC's expressed intent that the regulatory standard to be applied is a reasonablenessstandard, and that the IWCleft application of that objective standard in any given situation to DLSE's expertise as an enforcement agency to determine compliance based on the facts of each case. Labor Commissioner AmicusBrief at 3-4, SER31-32(italics in original).’ The required exploration of “all available facts and conditions” regarding each employee’s job meansconsideration of: (1) the physical layout of the workplace; (2) the employee’s job functions; (3) the expected job duties as defined by the employer; (4) the views of the employeras to the nature of the work, (5) the * An administrative agency’s interpretation of law in a legal brief may be given deference “whenit reflects the agency’s fair and considered judgmenton the matter in question.” (Jevne v. Superior Court (2005) 35 Cal.4th 935, 957 (citing, and quoting in part, Auer v. Robbins (1997) 519 U.S. 452, 462).) 8 DB2/ 25070591.31 employer’s business judgment; and (6) existing or historical industry or business practices. (/d. at 3-5, SER 31-33.) The DLSE’s multi-factortest reflects the holistic interpretation of the “nature of the work,” using a discerning assessment of the entire situation, rather than a simple identification ofjob duties that could be done while seated, as Petitioners urge. Consistent with DLSE standards and enforcementpolicies, in other suitable seating cases that have gone to judgment on PAGAclaims,the courts applied this same holistic approach and concludedthat the nature of the work of Kmart cashiers and hotel desk clerks required standing. Thus, there was no violation of Section 14 in either case.” WI. PROCEDURAL AND FACTUAL BACKGROUND This case, and the companion case of Kilby v. CVS, are before this Court on certification from the Ninth Circuit, which certified the following questions of California law: (1) 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? ” See Garvey v. Kmart Corp. (N.D. Cal. Dec. 18, 2012, No. C 11-02575 WHA) 2012 WL 6599534, *9 (trial verdict in favor of employer because nature of cashier work at Kmart required standing andplaintiffs failed to show that any seat would be suitable), appeal dismissed (Feb. 24, 2014); Hamilton v. San Francisco Hilton, Inc., Superior Court of California, County of San Francisco, Case No. 04431310 (June 29, 2005) (hotel desk clerk job required standing), CVS SER237-48. 9 DB2/ 25070591.31 (a) Ifthe courts should construe “nature of the work”holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat? (2) When determining whetherthe nature of the work “reasonably permits” the use of a seat, should courts consider anyorall 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? (3) Ifan employer has not provided anyseat, does a plaintiff need to prove what could constitute “suitable seats” to show the employer has violated Section 14(A)? This case and Kilby have different procedural postures: the district court in Hendersondeniedclasscertification, while the district court in Kilby entered summary judgment for defendant and deniedclass certification. A. Procedural History On February 17, 2011, Carolyn Salazarfiled a putative class action complaint in federal court alleging wage and hour claims against Chase, including a claim that Chase failed to provide her with “suitable seats” while she worked as a bankteller. Thereafter, Kemah Henderson and Taquonna Lampkins,and,later, TamanaDalton,filed their own suitable seating putative class action complaints in California state court. Chase removed these actions to federal court, where the suitable seating claims were eventually consolidated with Henderson as the lead case. (ER 401-424.) 10 DB2/ 25070591.31 B. Layout and Design of Different Chase Branches and Teller Areas Prevent And Limit The Use of Seats in Multiple Ways. The record evidence developed in federal court showsthat California Chase branches vary widely, ranging from traditional, stand-alone buildings to space allocated within grocery stores and otherretail establishments. (Meyer Dep. 67:4- 24 [describing “extreme variations” between Chase branches]; Rosh Decl. 3, ER 197 [“The Saratoga Branch and the Los Gatos Branch are very different.”].) These differences directly influence whetherthe nature of a Chaseteller’s work reasonably permits the use of a seat and, if so, whether a suitable seat exists to accommodate that work. For example, some Chase branches have bulletproof glass protecting the teller area. (Dyse Decl. §] 3, 4, ER 171; Henderson Dep. 188:16-22, SER 72; Lampkins Dep. 28:23-29:2, SER 97-98.) The evidence showsthat seats are usually impractical in at least some of these branches, where the teller and ~ customer exchange currency and documents through a small pass-through window. One Chaseteller at such a branch encountered this problem whenshesprained her ankle while trying to perform her duties from a chair. “[D]uring almost every transaction throughout the day, I had to scoot out ofmy chair in orderto reach far enough forward to reach the opening. I foundit inefficient and awkward.” (Dyse Decl. 4, ER 171.) 11 DB2/ 25070591.31 The setup ofteller stations also varies. Commonly-used equipment — what Petitioners call “office tools” (AOB-11) —1is not always within arm’s reach at every teller station. Someteller stations have cash drawers wheretellers make change for customers, but cash drawerlocations vary widely. In somecases, adding a seat to the teller station would impair access to the drawer. (Salazar Dep. 135:7-18, SER 155 [side]; ER 159-160, § 14 [below the teller window]; ER 171, 45 [on the side]; ER 184, § 4 [cash drawer wasplaced low, to prevent customers from seeing the money in the drawer]; ER 204, ¢ 10 [two cash drawers, one on the side and one low].) By contrast, some branchesdo not have cash drawersatall. Tellers at these locations use a “Teller Cash Dispenser” or “TCD,” an ATM-like device that providescashfortellers. (Andrews Dep. 90:14-17, SER 40.) Someteller stations have these TCD machineswithin arm’s reach of eachteller station but others do not, meaning tellers must regularly walk to a shared TCD machineto obtain cash for customers. (Davis Decl. | 4, ER 167; Lampkins Dep. 33:23-34:2, SER 99-100; Salazar Dep. 31:23-32:5, SER 126-127.) In addition to shared TCD machines,in manybranches,tellers share check printers and cash counters, meaningtellers must leave their teller stations to use these devices. (Andrews Dep. 54:14-25, 55:5-12, 66:2-16, 90:14-17, SER 37-40; Salazar Dep. 145:19-146:2, SER 159-160; Lampkins Dep. 52:12-16, 90:11-13, SER 103, 108; Anthony Decl. 7 3, ER 141; Davis Decl. § 4, ER 167; Dyse Decl. 6, ER 171-172; Ildefonso Decl. | 6, ER 12 DB2/ 25070591 .31 180; Khodanian Decl. § 3, ER 184; Vega Decl. 3, ER 210; Vu Decl. 95, ER 214-215.)'° C. ChaseTellers Perform A Wide Variety of Job Functions that Require Standing. Chasetellers do not perform any oneparticular job function continuously. The functions performed vary widely, depending on the person, branch,orshift worked.'' The manydifferent functionstellers perform — including how they do so, for how long, and where — prevent andlimit their ability to work while seated. Chasetellers can be found performing onejob function one minute, and other job functions the next. Henderson, for example, wasa “lead teller” expected to overseethe teller area, assist other tellers with overrides, work at a teller station when customer needs required, act as vault custodian, and assist with back office duties as needed, which required her to walk “all day long back and forth to the tellers, back and forth.” (Henderson Dep. 183:23-184:6, SER 70-71.) '° This evidence refutes Petitioners’ erroneousgeneralization that “[p]erforming ... basic teller functions does not regularly require tellers to walk about, as the office tools and material used most frequently by Chasetellers...are physically located on the teller counter within arm’s reach.” (AOB-11.) '' As onetellertestified, “[I] performed different duties in each ofthe Teller positions I’ve held at Chase.” (Ruiz Decl. { 3, ER 202.) Anotherteller stated that she “performed several responsibilities that other Tellers at [her] branch do not perform.” (Cervantes Decl. § 3, ER 157; Ildefonso Decl. § 3, ER 179 [“I have a variety of responsibilities that other Tellers in my branch do not have”]; Murrillo Decl. 4 5, ER 194 [duties performed at Oxnard branch weredifferent that those performed at Ventura branch].) 13 DB2/ 25070591.31 Some Chasetellers have “ATM Custodian” responsibilities that take the teller away from a teller station altogether. ATM responsibilities include checking to make sure the machinesare not jammedorout of cash or paper, carrying cash from the vault to the ATM room to replenish the ATM machine, pulling out deposits, and taking cash deposits from the machine backto the vault. (Anthony Decl. | 9, ER 143; Cervantes Decl. 9 4, ER 157; Dyse Decl. ¥ 8, ER 172; Ruiz Decl. 9 5, 7, ER 202-203; Vega Decl. 9 5, ER 211; Salazar Dep. 127:25-128:8, SER 149-150.) Other Chasetellers serve as “TCD Custodians” whoare responsible for maintaining the TCD machines. These duties involve counting cash in the machine, carrying the machines and/ortheir cash cassettes to the back room or vault, replenishing the TCD, and returning the TCD and/orcashcassette to the teller area. (Ildefonso Decl. § 5, ER 179-180; Anthony Decl. 7, ER 142; Tsuei Decl. 45, ER 207-208; Henderson Dep. 206:8-14, SER 82.) Still other Chase tellers serve as “Vault Custodians,” meaning they must order cash and coinsfor the branch, handle cash shipments from the armored car service, take cash from theteller line to the vault whena teller’s cash drawer exceeds the teller’s drawer limits, and bring cash from the vault to tellers on the teller line when neededto replenish cash drawers. (Anthony Decl. 7 4, ER 141-42; Cervantes Decl. { 7, ER 157-158; Cho Decl. § 7, ER 163, SER 196; Davis Decl. 4 14 DB2/ 25070591.31 5, ER 167-68; Ruiz Decl. §/] 5-6, ER 202-203; Vega Decl. 9 4, ER 210-211; Vu Decl. § 4, ER 214; Henderson Dep. 206:17-19, 220:2-11, SER 82, 87; Ildefonso Decl. | 4, ER 179.) SomeChasetellers greet customersin the lobby when noone1s in theteller line. (Lampkins Dep. 53:23-54:10; 111:12-13, SER 104-105, 113 [“Ifit's slow, then I would go work the lobby”]; Dyse Decl. 7, ER 172; Khodanian Decl. 5, ER 184-185; Ruiz Decl. 4 4, ER 202.) Other branches, like Henderson’s, had designated greeters in their branches, andtellers did not work the lobby. (Henderson Dep. 225:25-226:16, SER 89-90.) Others tellers were responsible for cleaning, restocking supplies, and vacuuming. (Vega Decl. 76, ER 211.) Dependingon the shift worked, tellers may perform “opening”duties to make the branch ready for business. (Ildefonso Decl. 9, ER 181, SER 211; Anthony Decl. § 11, ER 143, SER 176-177; Cervantes Decl. 4 10, ER 158, SER 191-92; Dyse Decl. § 9, ER 172, SER 205-206; Khodanian Decl. 4 6, ER 185, SER 215; Ruiz Decl. 8, ER 203, SER 231; Tsuei Decl. 4 6, ER 208, SER 240; Henderson Dep. 190:4-191:4, 192:22-25, SER 248-250; Salazar Dep. 133:18- 134:19, 147:23-148:24, SER 161-162, 260-261; Lampkins Dep. 81:7-19, 82:15-19, SER 255-256.) Other tellers perform “closing” duties, which include cleaning, checking the printers for sensitive materials, shredding documents, emptying trash, locking cabinets, restocking supplies, locking the vault, and setting the alarm. 15 DB2/ 25070591.31 (Ildefonso Decl. { 9, ER 181, SER 211; Vega Decl. § 7, ER 211, SER 243; Anthony Decl. § 11, ER 143, SER 176-177; Cervantes Decl. { 10, ER 158, SER 191-192; Dyse Decl. 9 9, ER 172, SER 205-206; Khodanian Decl. ¥ 6, ER 185, SER 215; Ruiz Decl. 4 8, ER 203, SER 231; Henderson Dep. 200:10-202:3, 204:18-205:15, SER 78-81, 251; Salazar Dep. 133:4-17, 149:10-150:12, 153:20- 154:11, SER 163-166, 260; Lampkins Dep. 85:16-25, SER 106.) D. TimeSpentat the Teller Station Varies Widely and This Phenomenon Prevents and Limits The Use of Seats. Just as teller functions vary, so too doesteller time spent away from teller stations. The record contains estimates of 70% of the work day spent away from a teller station (Vu Decl. § 4, ER 214) to 10% spent away (Henderson Decl. J 3, ER 380). But even Petitioner Henderson, who gave this low number, gave varying estimates: while her declaration says she spent 90% ofher timeat her station, she testified during deposition that, as a lead teller, “I walked all day long. I walkedall day long back andforth to the tellers, back and forth — overrides, back and forth.” (Henderson Dep. 101:16-102:5, 183:23-184:6, SER 58-59, 70-71.) Ms. Henderson also testified that regular, non-lead tellers at her branch spent 50% oftheir time awayfrom theirteller stations. (/d. 236:3-6, SER 94.) Contrary to Petitioners’ assertion, there was no “finding” by the federal district court that “the vast majority (at least 50%, and in many cases as much as 90%) of the Chasetellers’ total work timeis spent at the teller counters assisting 16 DB2/ 2507059131 customers.” (AOB-10.) What the district court found was that common evidence could not determine the amountof timetellers spentat their teller stations: “tellers provide different estimates for how muchtimethey spendattheirteller stations comparedto the amount of time they spend performing tasks that require them to leave their stations.” (ER 13.) E. The Workof a Chase Teller Requires Standing, The record shows Chasetellers could not perform a variety of teller functions while seated. (Ildefonso Decl. § 3, ER 179 [“The duties I perform in these roles can only be performed while walking or standing.”]; Davis Decl. § 4, ER 167 [“It would be difficult for me to perform these tasks while seated....””]; Khodanian Decl. ¥ 4, ER 184 [“I don’t think I could perform these transactions as efficiently if I were seated....A seat would get in the way.”]; Ruiz Decl. § 10, ER 204 [“[A] seat would just get in the way.”]; Tsuei Decl. § 3, ER 207 [“I do not believe I could perform my job duties while seated.”]; Carrillo Decl. 1 3, ER 152 [not possible to use a seat at the drive-up teller window]; Murrillo Decl. ¥ 7, ER 194; Vu Decl. 9 12, ER 216; Guy Decl. § 9, ER 176; Sanchez Decl. {fj 10-11, SER 236-37.) In addition, in branches whereseats were available, tellers often chose not to use them. Oneteller had an available chair, but she chose not to sit because she did not like doing so. (Cho Decl. § 9, ER 164 [“[M]y managerandassistant 17 DB2/ 2507059131 manager would frequently tell me that I could sit down,butI told them that I prefer to stand.”].) Other tellers who obtained seats for medical reasonsultimately realized it was necessary to stand. For example, oneteller who receiveda stool while pregnantexplained, “[w]hen I was pregnantanduseda stool, I had to get up and downfrom thestool throughout the day andit would becometiring....If I was sitting on a stool at my workstation, it would not be long before some task would require me to get up and walk to anotherpart of the branch.” (Vega Decl. J 8, ER 211-212.) The only workthis teller could perform seated was “not work that I normally perform asa Teller, but it was the only work I could do whilesitting at the desk.” (/bid.) Othertellers who received seats as a form ofdisability accommodation had job duties reassigned to other, non-seatedtellers, because those duties could not be performed while seated. (Cervantes Decl. ¥ 13, ER 159 [teller with medical accommodation had seatbut “[o]ther Tellers and I had to help her get cashier’s checks and other supplies that weren’t immediately at hand, and wealso had to take care of her closing duties”]; Khodanian Decl. J 9, ER 186 [teller with an ankle injury only used her chair “when there were no customersin the branch and she wasnotactually performing her duties”]; Burns Dep. 79:7-80:1, 80:10-20, 81:24- 82:13, SER 49-50 [othertellers covered duties such as responding to the drive-up 18 DB2/ 2507059131 teller]; Carrillo Decl. § 11, ER 155 [helped sick teller who couldn’t get cashier’s checks and other supplies whenseated].)'” Other Chasetellers prefer to stand for customerservice reasons. As one explained,“Part of good customerservice is greeting customers when they walk in the branch and being interested when serving them. To me, this means I should be standing to assist customers.” (Rosh Decl. 4 9, ER 198; Murillo Decl. § 7, ER 194 [“I would also feel awkward and that it was inappropriate for me to assist a standing customerwhile I am seated.”]; Tsuei Decl. § 4, ER 207 [“[C]ustomersare standing too, and I wantto stand and look at customersat eye level.”].)"° F. TheDistrict Court Denied Class Certification. Petitioners moved under Federal Rule of Civil Procedure 23 to certify a class ofmore than 5,000 tellers and leadtellers at over 900 Chase branchesin "? Petitioners’ claim that teller work could be performed while seated because Chase provided seats to tellers with medical needs (AOB-11) fails to disclose these job duty modifications and the fact that tellers who received seats did not find them helpful to their work. '° Petitioners also recountcertain “facts” that were not pertinentto the federal district court’s determination of class certification, and are not only disputed but were not developedin the record. These include: other banks providingseats to their tellers; some branches had seats in the teller area when those branches were operated by a predecessor; one furniture manufacturer producesa stoolfor tellers; and Chase did notinclude evidence of studies comparing or analyzing customer perceptions of standing versusseated tellers. (AOB-11-12.) None of these points bore on whether common evidence could have shownthat the nature of Chase tellers’ work reasonably permits the use of a suitable seat. That was the issue the federal district court confronted. 19 DB2/ 25070591.31 California. (ER238-243.) Class certification was denied based on an extensive factual record. (ER1-17.) The court found that Petitioners had not mettheir burden to establish commonality under Rule 23(a)(2). (ER9-15.) Class issues did not predominate given extensive differences in teller duties, experiences, and the physical layout of Chase branchesand teller workstations. (/bid.) In particular, the court found that common evidence could not establish the “nature of the work” for the thousandsoftellers in the proposed class because “tellers have different duties based ontheir status as leadteller orteller; the branch at which they work; the shift to which they are [as]signed; whether they have been assigned to an additional task such as ATM,vault, or TCD [Teller Cash Dispenser] custodian; and variousother factors that affect tellers’ daily tasks.” (ER13.) The court also found that common evidence could not be used to determine whether a seat would be either suitable or possible for tellers, given the “evidence on the record that the specific layout of the Chase branchesand individualteller stations varies greatly,” and evidence from Chasetellers whotestified that they could not perform their jobs while seated. (ER14.) Contrary to Petitioners’ current characterization of the order denying class certification, the court did not make any merits-based determinations concerning Section 14. Indeed, Petitioners did not even take a consistent stance concerning how Section 14(A),or its “nature of the work” requirement, should be interpreted, 20 DB2/ 25070591 .31 and they certainly did not advancethe interpretation of the “nature of the work” that they now urge this Court to adopt. Rather, in seekingclass certification, Petitioners argued that “nature of the work” means the “most common duties” or tasks that take up “the majority ofteller time.” (Motion for Class Certification, C.D. Cal. Dkt. No. 90-1, at 12:20-21; Reply to Motion for Class Certification, C.D. Cal. Dkt. No. 114, at 10-11.) Petitioners have since abandonedany such quantitative analysis of how tellers spend time. (AOB-30 [conceding “nothing in the text or history of the Wage Order supports an arbitrary ‘percentage-of-tasks or ‘percentage-of-time’ condition on employees’ right to suitable seating.”].) Furthermore, the court did not denyclass certification based on “the nature of other workthat plaintiff employees sometimes perform whennotassigned to the....teller counter” or “defendant’s preference that their employeesstandatall times while working.” (AOB-12.) Rather, the district court found that determining the nature of a Chaseteller’s work for purposes of applying Section 14 was individualized and could not be done using class-wide evidence. (ER9-15.)'* '* The federal district court did not find that “Chase has a nationwidepolicy, applicable to 900-plus California branches, not to provide anyseatingto its tellers.” (AOB-10.) For purposesofclass certification, the court treated Chase as having an “established policy of not providingseats to tellers,” even though the issue of whether such a policy existed wasa “close call” given “evidence on the record that some number of employees hadaccess to seats without making a medical request for one.” (ER8-9.) This comports with evidence that some Chase brancheshadseatsat teller stations, but “no written policy” onteller seating. Other evidence shows newly-built Chase branchesdid not automatically receive 21 DB2/ 25070591.31 IV. CERTIFIED QUESTION 1: THE “NATURE OF THE WORK” UNDER SECTION 14(A) REQUIRES A HOLISTIC ASSESSMENT OF THE JOB. The “nature of the work” meansa holistic, job-as-a-whole assessment: one that considersal] facts and circumstances. Such aninterpretation is required by statutory construction rules, the usual and ordinary meanings of words, and Section 14’s regulatory history. Such an interpretation comports with the multi-factor test that has long been used by California’s enforcement agency, the DLSE,and has been adopted by courts adjudicating claims based on Section 14. This Court should adhere to the long-standing,holistic interpretation that correctly implements Section 14’s language andhistory. The Wage Orderis a quasi-legislative regulation, subject to ordinary principles of statutory interpretation. (Cash v. Winn (2012) 205 Cal. App. 4th 1285, 1297 (2012).) Interpretation must begin with the statutory language, “giving the wordstheir usual and ordinary meaning.” (Day v. City ofFontana (2001) 25 Cal.4th 268, 272.) Petitioners’ suggested interpretation, that “nature of the work” meansspecific duties or tasks that could conceivably be done while seated, would contravene these statutory construction rules and lead to absurd results. seats, but actual practice was “different from place to place.” (SER41-42.) 22 DB2/ 25070591.31 A. Section 14 Requires a Holistic Approach BecauseIt Assigns Different Meanings to “Nature of the Work” and “Duties.” In drafting the current version of Section 14, the IWC drew a deliberate distinction between “nature of the work” and “duties.” “Nature of the work”is used in Section 14(A), while both “nature of the of work” and “duties” are used in Section 14(B). Whenread as a whole, as required by statutory construction rules, “duties” must be interpreted to be mean a subset of the broader phrase “nature of the work.” Underthat interpretation, Section 14(A) applies when the job-as-a- whole “reasonably permits”the use of a seat, while Section 14(B) applies when the job-as-a-whole “requires standing,” and the two provisions are dichotomous. “When the Legislature uses different wordsas part of the samestatutory scheme, those wordsare presumedto have different meanings.” (Romanov. Mercury Ins. Co. (2005) 128 Cal.App.4th 1333, 134.) The Court must give effect “to the statute as a whole, and to every word and clause thereof, leaving no part of the provision useless or deprived of meaning.” (California Assn. ofPsychology Providers v. Rank (1990) 51 Cal.3d 1, 18.) When twostatutory provisions touch upon a commonsubject, “they are to be construed in reference to each other, so as to harmonize the two in such a waythat no part of either becomessurplusage.” (DeVita v. Cnty. ofNapa (1995) 9 Cal.4th 763, 778 (internal quotations omitted); Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [“[A] construction making some wordssurplusage is to be avoided”].) When two 23 DB2/ 2507059131 different wordsare used, “the construction employing that different meaningis to be favored.” (People v. Stewart (2004) 119 Cal.App.4th 163, 171.) In Echavez v. Abercrombie and Fitch Co. Inc. (C.D.Cal. Aug. 13, 2013, No. 1 1-cv-9754-GAF) 2013 WL 7162011, *5, plaintiffs argued — as Petitioners do here — that the “nature of the work” is synonymouswith “duties,” but the federal district court rejected this interpretation. The court considered the interplay between the “nature of the work” and “duties” in Section 14, and concludedthat the meaning of 99 66the “nature of the work” “suggests the entirety of duties and responsibilities of a particular job. The job - ‘the nature of the work’ - either ‘permits the use ofseats’ or ‘requires standing,’ but it cannot do both.” (/bid.) In rejecting the same “duty or task” interpretation that Petitioners propose here, the Echavez court held, “[t]here is nothing to suggest that the Wage Order was intended to create such an unworkable rule for employers. Had such an approach been intended,it is reasonable to assume that the [WC would have chosen the phrase ‘job duties’ to the phrase ‘nature of the work.’” (/bid.) Given the distinction between the “nature of the work”and “duties,”it follows that Sections 14(A) and 14(B) are dichotomousand apply to different scenarios. If the “nature of the work reasonably permits the use ofseats,” then subsection (A) applies. If the “nature of the work” does not reasonably permit the 24 DB2/ 25070591.31 use of seats — that is, if standing is required for the job — then subsection (B) applies. Petitioners’ proposedinterpretation, focusing on whetherparticular job duties could be performed while seated (AOB-17), would render Section 14(B) surplusage, because nearly every job includesat least some duties that could conceivably be performed while seated. The IWC’suse of the job-as-a-whole, “nature of the work” terminology, instead of the term “duties,” prevents absurd results whereby a worker is made simultaneously subject to Section 14(A) and (B), 1.e., like when a chef chops vegetables, which might be done while seated (conceivably implicating Section 14 (A)) and then puts the vegetables in the oven, whichrequires standing (bringing Section 14(B)into play). Courts construing Section 14 reject such unwieldy constructions, and have used instead the prevailing, holistic interpretation of Section 14 as a meansto properly assess the nature of the work. (See, e.g., Echavez, 2013 WL 7162011 at p. *5 [“Subsection (B) provides for those employees whodonotget the benefit of Subsection (A)... {and t]he argumentthat both sections apply to all employees. . . would render limitations in subsection (B) meaningless”); Kilby, 2012 WL 1969284at p. *4 [finding that Sections 14(A) and 14(B) are mutually exclusive, because “[w]hen both subsections are given full and independenteffect, Section 14 establishes a dichotomous approach for employers to follow, based on the ‘nature of the work’ 25 DB2/ 25070591.31 involved”]; Aguirre v. DSW, Inc. (C.D. Cal. Jan. 19, 2012) 2012 U.S. Dist. LEXIS 62984, at *34 [“[Section 14(A)] should not be interpreted to require an employerto provide an employee engagedin a “standing” job a seat whether engagedin active duties or not[; o]therwise, the limitation in [Section B]. .. would be meaningless”].) B. ‘The Established Definition of “Nature of the Work” In Other Parts of the Same Wage Order Calls for a Holistic Analysis When Interpreting Section 14. A holistic interpretation of the “nature of the work”is also supported by how that phrase is used elsewhere in the very same Wage Orderthat contains Section 14’s seating requirements. Section 11 of the Wage Order addresses on-duty meal periods, and also uses the phrase “nature of the work.” In the on-duty meal period setting, “nature of the work”is defined holistically, without a limited linkage to specific job duties or tasks. Section 11 requires that employees receive a mandatory 30-minute meal break and that employees be “relieved of all duty” unless an exception appliesthat would allow an “on-duty” meal period. (Wage Order, § 11(C).) Meal periods may not be “on-duty” unless the employer shows, interalia, that “the nature ofthe work prevents an employee from beingrelieved of all duty.” (Ibid. (emphasis added); Abdullah v. U.S. Sec. Associates, Inc. (9th Cir. 2013) 731 F.3d 952, 958.) 26 DB2/ 25070591.31 For purposes of on-duty meal periods, the “nature of the work”is determined by applying a multi-factor test requiring an assessmentof: (1) the “type of work”; (2) the “availability of other employeesto providerelief to an employee during a meal period”; (3) the “potential consequences to the employerif the employeeis relievedofall duty”; (4) the “ability of the employer to anticipate and mitigate these consequencessuch as by scheduling the work in a mannerthat would allow the employeeto take an off-duty meal break”; and (5) “whether the workproduct or process will be destroyed or damagedbyrelieving the employee of all duty.” (See Abdullah, supra, 731 F.3d at p. 959 fn.12; United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int’l. Union, AFL— CIO, CLC v. ConocoPhillips Co. (C.D. Cal. Mar. 16, 2009, No. 08-CV-2068-PSG- FFMx) 2009 WL 734028, *6 n.4 [citing DLSE Opinion Letter 2002.09.04 with approvalas furnishing “factors [that] should be considered when determining whetherthe nature of the work permits an on-duty meal period”].) These multiple factors must be “taken as a whole.” (/bid.) Notably absent from this “nature of work” assessmentis any singular focus on particular job duties or tasks. A similar, holistic approach is needed when assessing “nature of the work”in Section 14 of the same Wage Order,for to do otherwise would leave in the very same Wage Order dramatically different meaningsfor the same phrase. (Sorenson v. Sec'y of Treasury of U.S. (1986) 475 27 DB2/ 25070591 .31 U.S. 851, 860 [“identical words used in different parts of the same act are intended to have the same meaning”].) C. Dictionary Definitions of “Work” and “Nature” Support a Holistic Approach A holistic approach is also supported by the most common dictionary definitions of the words “work” and “nature.” These definitions refer to “work”as “one’s accustomed meansoflivelihood” and a collection of tasks that are “a part or phase of somelarger activity.” When read in connection with the definition of “nature,” which means“the inherent character or basic constitution of a person or thing: essence,” job “duties” are nothing more than a subsetof the broader inquiry that is the “nature of the work.” Merriam-Webster’s first three primary definitions of “work” support a holistic interpretation of the “nature of the work.” They are: (1) “activity in which one exerts strength or faculties to do or perform something”; (2) “sustained physical or mental effort to overcome obstacles and achieve an objective or result”; and (3) “the labor, task, or duty that is one’s accustomed meansof livelihood.” Even Merriam-Webster’s fourth definition — “a specific task, duty, function, or assignmentoften being a part or phase of somelarger activity” — recognizesthat, 'S Merriam-Webster’s Collegiate Dictionary (11th ed. 2003), available at http://www.merriam-webster.com/dictionary/work (accessed June 11, 2014) 28 DB2/ 2507059131 when “work”is involved, tasks or duties are often “a part or phase of some larger activity.” Black’s Law Dictionary defines “work” this way: “for purposes of determining employee’s rights to compensation means physical and mental exertion controlled or required by employer and pursued necessarily and primarily for benefit ofemployer and business.”'® This definition broadly defines “work” to include anything an employee does, mentally or physically, for the employer’s benefit. Subsequent editions ofBlack’s have similarly defined “work” to mean “[p]hysical and mental exertion to attain an end, esp. as controlled by and for the benefit of an employer; labor.””” The Oxford Dictionary definition is similar, defining “work” as “mental or physical activity as a means of earning income; employment; . . . the place where one works; . . . the period oftime spent during the day engaged in such activity.””® These examplesare all consistent with defining “work” to mean the job as a whole, encompassing, but notlimitedto, all of the tasks or duties performed. '® Black’s Law Dictionary (6th Ed. 1990) (emphasis added). '? Black’s Law Dictionary (9th ed. 2009). '§ Oxford Dictionaries Online, available at http://oxforddictionaries.com/definition/american_english/work?q=work(accessed on June 11, 2014). 29 DB2/ 25070591 .31 Petitioners’ contention that the “most commonplain meaning dictionary definition of ‘work’ is ‘task’ or ‘duty’” (AOB-18) is simply wrong. Whenread in conjunction with the word “nature” andits definition — “the inherent character or 19 »"” — the “nature” of “work” meansbasic constitution of a person or thing: essence “the entirety of the duties and responsibilities of a particular job.” (Echavez, 2013 WL 7162011 at p. *5.) Petitioners’ proposed construction would render the words “nature” and “work” meaningless because they would mean the samething as the 39word “duty.” Had the IWC intendedthat seats be required whenever a particular employee duty could be performed while seated, the IWC could haveeasily written Section 14 to achieve this end. (Echavez, 2013 WL 7162011 at p. *5). It did not. Instead, the IWC modified its original enactment to make seating requirements “moreflexible.” (1976 Statement of Basis, Kilby RJN Ex. 2, p. 15.) Moreover, the [WCorthe Legislature could have voted to repudiate or change the prevailing administrative interpretation of Section 14 if it were inaccurate or in need of change. Neither did so. D. The Regulatory History Supports A Holistic Interpretation of Section 14’s Seating Requirements. The IWC hasrevised Section 14 andits predecessors overthe years since they were first promulgated in the early 20th century. This history of revision, and "° Merriam-Webster Collegiate Dictionary, supra. 30 DB2/ 25070591.31 the [WC’s statements of intent in support of those revisions, strongly confirm that the currentversion of Section 14,like its predecessors, requires a holistic analysis. (See Section II, supra.) As this Court has acknowledged, when the wordsofa statute or regulation are altered, it is presumedthat the Legislature intended to change the meaning. (Brinker, supra, 53 Cal.4th at p. 1041-49 & fn.28 [holding that when a Wage Order originally contained a requirement that was dropped,that omissionin the subsequent Wage Order evidences the IWC’s intention to no longer imposethat requirement].) If the [WC hadintended to require seats whenever an employeeis performinga task that could be performed while seated, the IWC would have written Section 14 to accomplish that result. It never did so. (See Section II, supra.) Nothing in Section 14’s language requires that employers providea seat whenever an employee is performing a task that could be performed while seated. Even the early Wage Orderiterations recognized that the “nature of the work” was to be evaluated based on “the judgmentofthe [IWC].” (See SectionII, supra.) This is consistent with the DLSE’s interpretation for nearly 100 years: all facts and circumstancesregarding the nature of the workare to be considered. AS Petitioners note, Section 14(A)’s predecessors originally contained language such as “as far as, and to whateverextent,” and requirements that seats be 31 DB2/ 25070591.31 provided “at work tables or machines.” (AOB-24-25.) The IWC, however, deliberately removed such language in subsequentversionsof Section 14, demonstrating that the IWC intendeda holistic view of the “nature of the work.” In fact, the IWC declared in its 1976 Statement of Findings that the amended seating provisions were “more flexible and more subject to administrative judgmentas to what is reasonable”than prioriterations. (Kilby RJN,Ex. 2, p. 15.) Accordingly, Petitioners are plainly incorrect when theyassert that “[p]rior versions of the [WC’s suitable seating provision establish a consistent administrative intent to ensure the availability of suitable seating to employeesto the maximum extent possible” and that prior language requiring seats “at work tables or machines” demonstrates that the IWC “intended a task-specific assessment of whenseating is required” in the current Wage Order. (AOB-24-26.) The DLSE’s administrative interpretation and enforcementhistory are consistent with a holistic interpretation. For example, salespersons could conceivably complete certain tasks while seated (such as signing contracts, completing forms, etc.), but the DLSE concluded that the nature of sales work requires standing, even though somespecific tasks could conceivably be performed while seated. (SER35 [opining that Section 14(A) does not apply to salespersons because “historically and traditionally, salespersons have been expected to be in a position to greet customers, movefreely throughout the store to answer questions 32 DB2/ 25070591.31 and assist customersin their purchases”].) The DLSE’s interpretation reflects the importance ofthe “job-as-a-whole”interpretation, and demonstratesthat Petitioners’ proposed duty-by-duty analysis is unsound. All facts and circumstances regarding the employee’s work should be considered when determining whether the nature of that work reasonably permits the use ofseats, just as has been the case for decades.”° *° Petitioners’ health benefit argument (AOB 28 & n.10) is unconvincing and contradicted by substantial, reputable experts. Numerousstudies show prolonged sitting is a significant occupational health concern leading to coronary heart disease, diabetes, breast cancer, and musculoskeletal disorders. (See, e.g., Hu, et al., The joint associations of occupational, commuting, and leisure-time physical activity, and the Framinghamriskscore on the 10-year risk of coronary heart disease, Eur Heart J 2007, 28:492-498; Hu, et al, Occupational, commuting, and leisure-time physical activity in relation to risk for Type 2 diabetes in middle-aged Finnish men and women,Diabetologia 2003, 46:322—329; Thune, et al., Physical activity and the risk of breast cancer, N Engl J Med 1997, 336:1269-1275; Griffiths, et al., Prevalenceandrisk factors for musculoskeletal symptoms with computer based work across occupations, Work 2012, 42:533-54.) As a 2010 Science Daily article states, “More time spent sitting linked to higher risk of death.” (Science Daily, July 10, 2010, availableat http://www.sciencedaily.com/releases/2010/07/100722102039.htm. And, as Forbes reported, “sitting at work all day is bad for you,” while standing at work “may extend yourlife up to three years.” Get Up, Stand Up, For YourLife, Forbes, August 3, 2012, available at http://www.forbes.com/sites/katetaylor/2012/08/02/can-standing-desks-fight- sitting-disease/.) In any event, Petitioners’ purported policy argument based on alleged benefits of sitting would contradict Section 14’s text, regulatory intent, and its interpretation by the DLSEandthe courts. To the extent Petitioners seek a requirementthat seats be provided if any particular duty could be performed whileseated, they should petition the Legislature to changethe law. 33 DB2/ 25070591.31 Vv. CERTIFIED QUESTION 1(A): SECTION 14 DOES NOT REQUIRE A TIME QUANTIFICATION ANALYSIS. A holistic analysis of the “nature of the work” does not require suitable seats when “more than half of an employee’s time is spent performingtasks that reasonablyallow the use ofa seat.” (Certified Question 1(a).) Such an interpretation finds no support in Section 14. It is also incompatible with the long- used, multi-factor test for assessing the “nature of the work”and the history of DLSE administrative interpretation and enforcement. Petitioners originally lobbied the district court to interpret “nature of the work”as the “most common duties” performedbytellers. (Motion for Class Certification, C.D. Cal. Dkt. No. 90-1, at 12:20-21.) Petitioners then advocated that “nature of the work” should be defined as tasks that take up “the majority of teller time.” (Reply to Motion for Class Certification, C.D. Cal. Dkt. No. 114,at 10-11.) In federal appellate proceedings, Petitioners pressed manydifferent interpretations of the “nature of the work,” including: duties that take an “appreciable amount of work time” (9th Cir. Dkt. No. 1-2,at p. 9); a teller’s “significant” job duties (9th Cir. Opening Brief at 5); a tellers’ “core job functions” (ibid.); and the “essential elements of a covered employee’s particular job duties” (id. at p. 18). 34 DB2/ 25070591.31 Now,before this Court, Petitioners finally agree with Chase that Section 14 has no language suggesting that the “nature of the work”has any kind of quantitative element. Section 14 does not specify that suitable seats are required if more than 50% of worktime is spent on duties that could conceivably be performed while seated. (AOB-30-33.) If Section 14(A) required a “quantitative” analysis, counting time spent on particular duties, then Section 14 would contain such language. It does not. Termslike “primarily engaged” or “customarily and regularly” engaged are usedin the same Wage Order when a quantitative analysis is contemplated — i.e., a determination of the amountorpercentageoftime spent on given job duties or functions. (See, e.g. Wage Order §§ 1(A)(1) [executive exemption requires employee to be “primarily engaged” in exempt managerial duties and “customarily and regularly” direct the work oftwo or more other employees]; 1(A)(2) [administrative exemption requires employeeto be “primarily engaged” in exempt administrative duties and “customarily and regularly” exercise discretion and independent judgment].)”' *! The Wage Order expressly defines “primarily” to mean “more than one-half the employee’s work time.” (Wage Order § 2(N).) In the exemption context, this meansthat “exempt” duties must beidentified, the time spent on those duties tallied and quantified, and if the total time spent on exempt duties exceeds 50% of the employee’s total work time, then the employee can meetthis part of the exemption test. (Campbell v. PriceWaterhouseCoopers, LLP (9th Cir. 2011) 642 F.3d 820, 831 n.11 [under California law, “[t]o ‘primarily engage’ in exempt work, an employee mustspend at least 50% ofhis or her time on exempt work”].) 35 DB2/ 25070591.31 Similarly, the IWC and DLSEhavedefined the phrase “customarily and regularly” to mean “a frequency which mustbe greater than occasional but which may beless than constant.” (DLSE EnforcementPolicies and Interpretations Manual § 52.3.8.4; 29 C.F.R. § 541.207(g) (2000).) Ifa quantitative approach had been envisioned for Section 14 ~ i.e., whether work tasks could be performed while seated “more than one-half the employee’s work time”or “greater than occasional but . . . less than constant” — the IWC would have used the same terminologyit used in other sections of the Wage Order to denote a quantitative approach. As the [WC madeclearin its 1976 Statement of Findings, the modern seating provisions are “more flexible and more subject to administrative judgment as to whatis reasonable.” (Kilby RJN, Ex. 2, p. 15.) If the task were simply to tabulate time spent on seated versus non-seated duties, meaningful “judgment” wouldn’t be needed. The fact that judgment and administrative expertise have always been contemplated underscoresthat the phrase “nature of the work” does not require a quantitative analysis of the time spent performingparticulartasks. Petitioners describe hypothetical security guards, amusementpark workers, and bookstore workers (AOB-31-33), but their examplesare oflittle assistance here. Petitioners’ hypothetical security guard watches security monitors for four hours straight and then spendsfive hours patrolling the building; Petitioners’ 36 DB2/ 25070591.31 amusementpark worker is a ticket taker on certain days and runsthering toss booth on others; and Petitioners’ bookstore worker staffs the customerservice desk on certain days and stocks bookson others. (AOB-31-32.) Petitioners’ hypothetical employees perform distinct job duties continuously and at separate times. Chasetellers are different. They do not cash checks on certain days and walk customersto the safe deposit boxes on other days. Chasetellers cash checks one minute (a task which may or maynot involve helping a customerata teller station), get cash from the vault or TCD the next minute, and thereafter walk to a supervisor(i.e., for approval of a transaction), walk to a check printer the next, or escort a customer to her safe deposit box. These functions are not neatly segregated like those in Petitioners’ hypotheticals. Rather, Chasetellers and their duties resemble thoseofretail salespersons, who need not be furnished with seats per the DLSE’s December 1985 DLSEopinionletter. Such employees with overlapping duties show whyattempts at dividingall jobs into seated and standing duties yields an inappropriate and inadequate test, and why the black-and-white : “a: 22 seating rule Petitioners advance cannotbecorrect. *? This is not to say thatall tellers in the banking industry have the same multi- tasking responsibilities as Chasetellers. It is conceivable that some other banks could hire tellers only to cash or deposit checks and to perform no other duties — like replenishing ATMs,servicing customersat drive-throughteller windows, walking customers to safe deposit boxes, or replenishing cash from the vault — 37 DB2/ 25070591 .31 A holistic, multi-factor test, which gives weightto all facts and circumstances, is necessary to account for multi-tasking workers, like Chase tellers. The proper definition of “nature of the work” must be flexible enoughto allow its intelligent and reasonable application to all of the many different types of jobs present in our modern society. VI. QUESTION 2: THE COURT MUST CONSIDER BUSINESS JUDGMENT AND PHYSICAL LAYOUT OF THE WORKPLACE. Thefact that Section 14 includes qualifying languagethat “suitable seats” are available and that the employee’s work “reasonably permits the use of seats” further supports the holistic interpretation of “nature of the work.” This language meansthat assessing whetherseats are “suitable”and “reasonable” requires more than simply determining whetheranyparticular job duty can conceivably be performed while seated. Just as the DLSE has donefor years, whether the nature of the work “reasonably permits” the use of seats requires that “all existing conditions” be taken into account, including the employer’s business judgment, expectations of the job, the physical layout of the workplace, worker safety, and other factors. duties that are undisputedly performed by some Chasetellers. (See Section II.C.) Anyinterpretation of “nature of the work” must be flexible enough to accountfor the differences in duties performed by various Chasetellers, as well as tellers at other banks. 38 DB2/ 2507059131 A. Employer Business Judgment and Expectations Are Important Factors Relevant to Whether the Nature of the Work Reasonably Permits the Use of Suitable Seats. Business judgmentand the employer’s job expectations are now,and always have been, relevant inquiries when determining whetherthe nature of an employee’s work reasonably permits the use of suitable seats. As the Labor Commissionerexplained in Garvey, “business judgments are relevant in determining the overall appropriateness ofproviding seating.” (Labor Commissioner AmicusBrief at p. 4, SER32.) The DLSE “would also consider existing or historical industry or business practices along withall available information regarding the nature of the work, but would nottreat any individual factor as dispositive.” (/d. at 4-5, SER32-33.) To date,trial courts adjudicating Section 14 claims have considered employer business judgment when determining the nature of the work. (See, e.g., Garvey v. Kmart Corp. (N.D.Cal. Dec. 18, 2012, C 11-02575 WHA) 2012 WL 6599534, *9; Hamilton v. San Francisco Hilton, supra, CVS SER237-48.) Petitioners’ proposedinterpretation, that employer business judgment and other factors should be excluded from the Section 14 analysis (AOB-34),is irreconcilable with the [WC’s modern modifications to the Wage Order. These changes conditioned Section 14(A)’s seating requirements on whetherthe nature of 39 DB2/ 25070591 .31 the work “reasonably permits” the use of seats. Petitioners’ paraphrase of Section 14(A) notably omits the term “reasonably.” Asdiscussed in SectionII, supra, prior versions of Section 14 did not contain the modifier “reasonably.” That word was addedto the 1976 version of Section 14 in order to make seating requirements “more flexible and more subject to administrative judgmentas to what is reasonable.” (1976 Statement of Findings, Kilby RJN Ex. 2, p. 15.) The addition of the modifier “reasonably” certainly meansthat the analysis is not limited to whetherit is physically possible to provide a seat. The use of the word “reasonably” connotes a needto lookat all circumstancesandfairness in particular. In an employmentsetting, jobs are created and offered by employers based on the employer’s assessment of what business needs require. It blinks reality to suggest that employer-defined job requirements are not amongthe factors that bear on whetherthe “nature of the work” reasonably permits the use ofa seat. Petitioners pursue another gambit as well. Turningto their dictionaries again, they argue that the use of the word “nature” in “nature of the work” precludesjudicial consideration of employer business judgment, including in *? AOB-34 [“Any deference to an employer’s unsupported ‘business judgment’is contrary to the plain meaning and purpose of the Wage Order, which dictate that employers ‘shall’ provide employees with suitable seats when the ‘nature’ of the work permits.”]. 40 DB2/ 25070591.31 defining jobs and job requirements. (AOB-35.) This contention, however,is directly at odds with how Petitioners have elsewhere defined “nature of the work” as “a specific task, duty, function, or assignment often being a part or phase of somelargeractivity.” (AOB-18 (emphasis added).) If the “nature of the work” includesthe “assignment” given by the employer, then employer expectations and business judgments must comeinto play, because work “assignments” do not materialize out of thin air. California courts have recognized in many contexts the importance of giving consideration to the requirements of each employer’s business. Courts are not intended or suited to substitute their judgmentfor that of employers about what the needsofparticular businesses require. (See, e.g., Lee v. Interinsurance Exch. (1996) 50 Cal.App.4th 694, 713-14 [business judgment rule].) Petitioners make the exaggerated charge that consideration of employer business judgmentwill cause Section 14(A) to “lose all force.” (AOB-34.) Chase has never contended that employer business judgmentis a sole or dispositive factor that trumpsall others. Rather, as the Labor Commissioner has confirmed, “DLSE would consider the views of the employeras to the nature of the work but these views would not be controlling.” (Labor Commissioner AmicusBriefat p. 4, SER32.) Indeed, “the IWC left application of that objective standard in any given 4] DB2/ 2507059131 situation to DLSE’s expertise as an enforcement agency to determine compliance based on the facts of each case.” (Ibid.) Employer business judgmentis one of several factors that has long been — and should continue to be — considered when interpreting and applying the Wage Order.” B. The Physical Layout of the Workplace Is Relevant to Whetherthe Nature of the Work Reasonably Permits the Use of Suitable Seats Properinterpretation of the “nature of the work” requires consideration of the physical layout of the workspace, worker safety, and other relevant constraints on the actual deploymentofseats in the workplace.” Under Section 14(A), seats ** Petitioners misstate the record when they assert that “neither defendant was able to cite any evidentiary basis forits ‘belief? that standing cashiersor tellers provide better customer service than do seated employees.” (AOB-35 fn.11.) Numerous Chasetellers testified that they believe they provide better customer service when standing. (See Section IIL.E., supra). Expert testimony showedthattellers do, in fact, provide better customer service experiences when standing. (Expert Decl. of Dr. C. Dev., at p. 4 [“[H]aving Tellers and Lead Tellers that stand rather than sit would havea positive impact on the effectiveness and efficiency of customer service, brand standards of Chase, customerissue resolution, and competitive advantage of Chase versus its competition.”].) Petitioners never refuted this evidence. * Petitioners’ suggestion that Chase should apply for the “safety valve” of an administrative exemption unjustifiably presumesthat seating is required in thefirst place. As the DLSE hasexplained,“[t]he Commission added the word‘feasible’ [in a prior iteration of the Wage Order] at the request of employers so as to minimize the need to apply for special exemptions.” (Kilby ER181 (emphasis added).) Indeed, Petitioners’ suggestion that Chase seek an exemption impliedly 42 DB2/ 25070591 .31 are not required unless the nature of the work reasonably permits the use of suitable seats. This standard looksat the existing job and workplacesituation, not how the workplace might be modified to trigger the applicability of Section 14(A). The record evidence shows numerousphysical variations across the hundreds of California Chase bank branches. For example, some Chase branches — have bulletproof glass for the safety and protection oftellers. (See Section II.B, supra.) The record showstellers in these branches cannot perform their jobs from a seated position dueto the setup of the bulletproof glass. (/bid.) Asearlier noted, a majority of Chase branches do not have “office tools,” like check printers and TCDs, within each teller’s reach. (Jbid.) Most often, Chase tellers shared these items and hadto leavetheirteller stations to access them. (Ibid.) — Given these constraints necessary to serve other business and employee needs, commonsensedictates that the physical layout of the existing workspace must be considered under Section 14, just as the Garvey court did when it entered judgmentagainstplaintiffs because, amongotherthings, they failed to prove that seats could be provided without imposing a safety hazard. (Garvey, 2012 WL 6599534at p. *9.) acknowledgesthat a holistic, multi-factor assessment should ultimately be performed. If Chase had applied for an exemption, the DLSE would haveusedits multi-factor test to assess whether the nature of the work reasonably permits the use ofseats, not the “specific duties” test advanced by Petitioners. 43 DB2/ 25070591 .31 Petitioners contend that the “nature of the work” cannot consider the physical layout of the workplace, because employers are obligated to modify work areas to permit the use of seats. (AOB-37-39.) Section 14(A) contains no such requirement, and properly so. If the inquiry is limited to employee dutiesonly, without considering the workspace or the employer’s expectations,absurdity will result. For example, if a foreman on a construction site holds a morning meeting with workers, then Petitioners’ “specific task” interpretation would require that the employerprovideseats for that meeting, since the “task” of meeting could be done while seated. Petitioners’ interpretation of Section 14 would exclude from consideration whether physical limitationsat the construction site constrain the placementofseats or render the placement ofseats dangerous. If a group ofnurses rides the hospital elevator to go from onepatient’s room to another, then Petitioners’ interpretation would require seating in the elevator, since the task of riding the elevator could be done while seated. Ifa salespersonin a large departmentstore folds clothesat various locations on the sales floor while at the same time monitoring the store for customers in needofassistance, Petitioners’ interpretation would requirethe store to find a waytofill the sales floor with seats without inquiring into the store’s physical constraints. This cannot be what Section 14 requires. Indeed, the DLSE expressed the view nearly thirty years ago that 44 DB2/ 25070591 .31 retail employers are not required to provide seats to salespersonsin their stores. (SER35.) In interpreting Section 14, this Court must not only consider howits interpretation will impact the thousandsof different jobs throughout California today, but how jobs will changein the future. A holistic, multi-factor approach allows a concept that wasoriginally enacted in the early 20th century to be made relevant in a diverse modern economy. VIL. QUESTION 3: PLAINTIFFS BEAR THE BURDEN OF PROOF AS TO WHETHERA SEATIS “SUITABLE.” ' The plain language of Section 14(A) makesclear that the existence of a suitable seat is an elementof a plaintiff's primafacie case for a Wage Order violation. Thus, plaintiff bears the burden to prove that a “suitable” seat exists that should have been provided by the employer. (Garvey, 2012 WL 6599534at p. *9 [“plaintiff has the burdento provethat ‘suitable seating’ exists”].) “[A] party has the burden ofproofas to each fact the existence or nonexistence of whichis essential to the claim for relief or defense that he is asserting.” (Evid. Code § 500.) Thus,plaintiff must prove each element of each cause of action pleaded. (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal. App.4th 1658, 1668; 1 Witkin, Cal. Evid. 5th (2012) Chapter II, Burden of Proof and Presumptions, § 8, p. 178 [““Where, underthe substantive law,a fact is 45 DB2/ 2507059131 essential to the plaintiff's claim for relief, the burden of pleading and proofof that fact is on the plaintiff’].) Section 14(A) sets forth the elements that a plaintiff must prove in order to establish a violation, namely: (1) the nature of the work reasonably permits the use of seats; (2) the employer did not provide working employeeswith a seat; and (3) a “suitable” seat exists. (Section 14(A); see also Kilby v. CVS Pharmacy, Inc. (S.D. Cal. Apr. 4, 2012, No. 09CV2051-MMA KSC) 2012 WL 1132854; Gallardo v. AT&TMobility, LLC (N.D. Cal. Mar. 29, 2013) 947 F. Supp. 1128, 1136-37[at pleading stage, allegation that “[t]here is nothing in the layout and/or design ofAT & T Mobility stores that would interfere with the addition of seating forthe retail employees” wassufficient to “state a claim for a violation of WageOrderSection 14(A).”].) Even in a case wheretheplaintiff can establish that the “nature” of her work would reasonably permit the use of a seat, she muststill prove that a suitable seat exists but was not provided. The “suitable seat” requirementis an independent elementofthe regulation.”° Thus, establishing that a suitable seat exists is an essential elementofplaintiff's claim, for which plaintiff bears the burden ofproof. 6 Nor does Section 14(A)state or suggest that the non-existence or impracticality of a seat is an affirmative defense to a suitable seating claim, such that the employer would bear the burden of proof. Had the [WC intended such aninterpretation, it would certainly have drafted Section 14(A) with such language, such as: “unless the employer proves that the nature of the work does not reasonably permit the useof seats...” 46 DB2/ 2507059131 Petitioners erroneously argue that “[a]n employer’s failure to provide any seating to an employee whose work reasonably permits the use of seats establishes an employer’s prima facie liability under § 14(a).” (AOB-42.) Petitioners’ argumentis contrary to the Wage Orderand,thus,fails. The Wage Orderitself makesnodistinction between cases where the employer already provides some seating (which may or may notbe “suitable”) and where the employer provides no seating. Thus, Petitioners’ argumentthat they should be excused from proving one of the primafacie elements of their claim in cases where noseats are provided finds no support whatsoeverin Section 14. If there is no suitable seat that could be provided — regardless of whether the nature of the work would reasonably permit the use of a seat — an employer could not violate the Wage Order. Moreover, Petitioners’ tortured construction necessarily requires reading the term “suitable” out of the Wage Order. Liability cannot be imposed simply by failing to provide any seat; rather, the Wage Orderspecifically refers to the employer’s provision of a “suitable” seat. As the court in Garvey concludedpost- trial: The Court would be exceedingly reluctant to order Kmart to use a seating system that poses a safety hazard. Put differently, as to the proposed design modification, plaintiff has the burden to provethat“suitable seating’ exists. Suitable seating must meansafe seating. Class counsel have failed to prove this aspect oftheir case. 47 DB2/ 25070591 .31 (Garvey, 2012 WL 6599534 at *9.) As an essential elementoftheir claim, Petitioners bear the burden of proving that thereis a “suitable” seat Chasefailed to provide that reasonably permits employeesto carry out the nature of their work.” VIII. CONCLUSION For the foregoing reasons, the answers to the Ninth Circuit’s Certified Questions should beas follows: l. The phrase “nature of the work”as used in Sections 14(A) and (B)is to be viewed holistically, with courts considering the samefactors as the agency tasked with enforcing the Wage Order (the DLSE). Specifically, courts will consider “all available facts and conditions” regarding the employee’sjob, including: (1) the physical layout of the workplace; (2) the employee’s work functions; (3) the expected job duties as defined by the employer; (4) the views of the employeras to the nature of the work; (5) the employer’s business judgment; and (6) existing or historical industry or business practices. Courts must consider the entire range of an employee’s duties, not just individual tasks or duties. l(a). Under Sections 14(A)and(B), the particular amountoftime an *7 Petitioners devote a considerable amountof their Question 3 discussion to the issue of whether employees must request a seat. (AOB-43-44.) This issue never arose in federal court proceedings. Evenif it had arisen, the question of whether an employee must request a seat has nothing to do with whether the employee has to provethat there is a suitable seat that could be provided — regardless of whether a request was made. 48 DB2/ 25070591.31 employee spendsontasksthat reasonably allow the use of a seat is not dispositive in determining the “nature of the work.” 2. To determinethe “nature of the work” for a given employee, courts must consider “all available facts and conditions” regarding the employee’s work, including: (1) the physical layout of the workplace; (2) the employee’s work functions; (3) the expected job duties as defined by the employer; (4) the views of the employeras to the nature of the work; (5) the employer’s business judgment; and (6) existing or historical industry or business practices. 3. In orderto establish a violation of Section 14, the plaintiff bears the burden of proving that a “suitable seat” could have been provided by the employer whenthe nature of an employee’s work reasonably permits the use of that suitable seat. The employers, jobs, and job duties in California have changed enormously since the first versions of the Wage Orders wereissued in the early 20th century. More changesin the future are assured. In answering the Ninth Circuit’s certified questions, the Court must not only consider the impact of its answers on the thousandsofdifferent jobs, employees, and employers present in California today, but also the jobs, employees, and employers California will host in the future. The holistic, multi-factor approach to the Wage Order’s seating requirements — an approach that considersall facts and circumstances — has proved for decadesto be 49 DB2/ 25070591.31 a sound wayto address California’s vibrant and diverse employment and workplace conditions. This Court should not depart from this approach now. Dated: DB2/ 25070591.31 June 11, 2014 MORGAN,LEWIS & BOCKIUS LLP By CaiAPath 50 Carrie A. Gonell Thomas M.Peterson Attorneys for Defendant-Respondent JPMORGAN CHASE BANK,N.A. IX. CERTIFICATION OF COMPLIANCE Pursuant to Rule 8.204(c)(1), California Rules of Court, the undersigned herbycertifies that the Answer Brief of Respondent JPMorgan Chase Bank, N.A. contains 12,194 words, excluding tables andthis certificate, according to the word count generated by the computer program used to producethisbrief. Dated: June 11, 2014 MORGAN, LEWIS & BOCKIUS LLP By (;LUMA A Hemet { ry Carrie A'Génell MY’ ThomasM.Peterson Attorneys for Defendant-Respondent JPMORGAN CHASEBANK,N.A. DB2/ 25070591 .31 CERTIFICATE OF SERVICE I, Davace Chin, declare and certify as follows: I am a resident of the State of California, County of San Francisco; I am over the age of eighteen years and not a party to the within action; my business addressis One Market, Spear Street Tower, San Francisco, California 94105. On June 11, 2014, I served on the interested parties in this action the within documents entitled: ANSWERBRIEF OF RESPONDENT JPMORGAN CHASE BANK, N.A. BY UNITED STATES POSTAL SERVICE,following ordinary business practices for collection and processing of correspondence with said service, and said envelope will be deposited with said overnight mail service on said date in the ordinary course of business. Addressee Attorneysfor: Michael Rubin and Connie K. Chan Plaintiff-Petitioner Nykeya Kilby Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Kevin, J. McInerney Plaintiffs-Petitioners Kemah Henderson, 18124 Wedge Parkway, Suite 503 Taquonna Lampkins, and Carolyn Salazar Reno, NV 89511 James F. Clapp, James T. Hannink and Plaintiff-Petitioner Nykeya Kilby Zach P. Dostart Dostart Clapp & Coveney, LLP 4370 La Jolla Village Drive, Suite 970 San Diego, CA 92122 Matthew Righetti Plaintiff-Petitioner Nykeya Kilby Righetti Glugoski, PC 456 Montgomery Street, Suite 1400 San Francisco, CA 94104 Mark A Ozzello Plaintiff-Petitioner Tamana Dalton Arias Ozzello & Gignac LLP 6701 Center Drive West, Suite 1400 Los Angeles, CA 90045 Addressee Raul Perez Capstone Law APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Barbara A. Jones AARP Foundation Litigation 200 S. Los Robles, Suite 400 Pasadena, CA 91101 Melvin Radowitz AARP 601 E Street, NW Washington, DC 20049 Robin G. Workman Qualls & Workman 177 Post Street, Suite 900 San Francisco, CA 94108 Arif Virji Lynch, Gilardi & Grummer 170 Columbus Avenue, Fifth Floor San Francisco, CA 94133 Attorneys for: Plaintiff-Petitioner Carolyn Salazar Amicus AARP Amicus AARP Amicusclasscertified in McCormackv. WinCo Holdings, Inc., Riverside Superior Ct. No. RIC1200516 Amicusclass certified in Pickett v. 99 Cents Only Stores, Los Angles Superior Ct. No. BC 473038 I declare under penalty of perjury, under the laws of the United States of American and the State of California, that the aboveis true and correct. Executed on June 11, 2014, at San Francisco, California. Sib.