KILBY v. CVS PHARMACYAppellants, Nykeya Kilby, Kemah Henderson, Taquonna Lampkins, Carolyn Salazar, and Tamanna Dalton, Opening Brief on the MeritsCal.April 11, 2014SUPREME COURT FILED Case No. 8215614 APR 11 2014 Frank A. McGuire Clerk IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Deputy NYKEYAKILBY, Plaintiff/Petitioner, Vv. CVS PHARMACY,INC, Defendant/Respondent. KEMAH HENDERSON,etal. Plaintiffs/Petitioners, Vv. JPMORGAN CHASEBANK,etal. Defendant/Respondent. On Certified Questions from the United States Court of Appeals for the Ninth Circuit Pursuant to California Rule of Court 8.548 Ninth Circuit Case Nos. 12-56130 and 13-56095 PETITIONERS’ OPENING BRIEF *MICHAEL RUBIN (#80618) KEVIN J. McINERNEY(#46941) CONNIE K. CHAN(#284230) 18124 Wedge Parkway. Suite 503 ALTSHULER BERZON LLP Reno, NV 89511 177 Post Street, Suite 300 Telephone: (775) 849-3811 San Francisco, CA 94108 Facsimile: (775) 849-3866 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 (Additional Counsel Next Page) Attorneys for Petitioners Nykeya Kilby, Kemah Henderson, Taquonna Lampkins, Carolyn Salazar, and TamannaDalton Case No. 8215614 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA NYKEYAKILBY, Plaintiff/Petitioner, Vv. CVS PHARMACY,INC, Defendant/Respondent. KEMAH HENDERSON,etal. Plaintiffs/Petitioners, V. JPMORGAN CHASE BANK,etal. Defendant/Respondent. OnCertified Questions from the United States Court of Appeals for the Ninth Circuit Pursuant to California Rule of Court 8.548 Ninth Circuit Case Nos. 12-56130 and 13-56095 PETITIONERS’ OPENING BRIEF *MICHAEL RUBIN (#80618). KEVIN J. McINERNEY(#46941) CONNIE K. CHAN(#284230) 18124 Wedge Parkway. Suite 503 ALTSHULER BERZON LLP Reno,NV 89511 177 Post Street, Suite 300 Telephone: (775) 849-3811 San Francisco, CA 94108 Facsimile: (775) 849-3866 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 (Additional Counsel Next Page) Attorneys for Petitioners Nykeya Kilby, Kemah Henderson, Taquonna Lampkins, Carolyn Salazar, and TamannaDalton Additional Counselfor Petitioners JAMESF. CLAPP (#145814) MATTHEW RIGHETTI (#121012) JAMES T. HANNINK (#131747) RIGHETTI GLUGOSKI, PC ZACH P. DOSTART (#255071) 456 Montgomery Street, Suite 1400 DOSTART CLAPP & COVENEY, LLP San Francisco, CA 94104 4370 La Jolla Village Drive, Suite 970 Telephone: (415) 983-0900 San Diego, CA 92122-1253 Facsimile: (415) 397-9005 Telephone: (858) 623-4200 Facsimile: (858) 623-4299 TABLE OF CONTENTS TABLE OF AUTHORITIES ............. 0. ce eee cee eens Vv QUESTIONS PRESENTED FOR REVIEW ........... 0. cece eee 1 INTRODUCTION ........0 0. cccent ene e nen ene 2 FACTUAL AND PROCEDURAL BACKGROUND...... dence ene ee 4 I. Statutory and Regulatory Framework ................-. 4 II. Plaintiffs Presented Evidence That Their Employers Failed to Provide Any Seating For Employees Performing Stationary Workat Fixed Locations ........... 0.00. e eee eee eee 7 A. The Evidencein Kilby v. CVS Pharmacy, Inc. ..... 8 B. The Evidence in Henderson v. JPMorgan Chase Bank 0.0.0...cece... 10 Il. The Trial Courts Impermissibly Based Their Rulings on Factors Other Than Whether the Nature of the Work for WhichPlaintiffs Sought Seating Could Reasonably Be Performed While Seated 00... . 0.2 ee eee tee ee eee 12 A. The CVSTrial Court’s Rulings ................. 12 B. The Chase Trial Court’s Ruling ................ 14 IV. Proceedings in the Ninth Circuit ................eka 15 LEGAL STANDARD .......eee ce ete eet e eee nena eee 15 ARGUMENT.........0000000 008 Love eee etna:onde nenee es 16 I. QUESTION1: Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the courseof his or her workday, or should courts construe “nature of the work”holistically and evaluate the entire range of an employee’s duties? Il. QUESTIONla: If the 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? ................ 17 A. The Text of §14 Supports Construing “Nature of the Work”as the Job Task or Tasks Being Performed, Not an Unweighted Aggregation © of an Employee’s Every Assignment .....ee 18 The Regulatory History and Purpose of §14 Supports Construing “Nature of the Work”as the Job Task or Tasks Being Performed, Not the Aggregate of an Employee’s Every Assignment ... 24 Imposing an Arbitrary “Percentage of Tasks” Condition on Employees’ Rights to §14(A) Seating Would Yield Absurd Results When Applied to Real-World Scenarios ............... 30 QUESTION 2: When determining whether the nature of the work “reasonably permits”the use of a seat, should courts consider any orall of the following: the employer’s business judgment as to whether the employee shouldstand, the physical layout of the workplace, or the physical characteristics of the employee? .. 0.2.0... cece erent teenies 33 A. Section 14(A) Guarantees Workers a Suitable Seat Based on an Objective Assessmentofthe “Nature” of The Work, Not on an Employer’s Subjective Preference .............- 34. Section 14(A) Establishes a Mandatory Condition of Labor With Which Employers Must Comply, Even if Doing So Requires Modification of Existing Workstations .......... 37 Section 14(A) Establishes a Standard Condition of Labor For A// Employees, Regardless of Their Physical Characteristics ...... 4] i III. QUESTION 3: If an employer has not provided anyseat, doesa plaintiff need to prove what would constitute “suitable seats” to show the employerhas violated §14(A)? ....... 42 CONCLUSION ...... 0... cecenee een enn enn 44 CERTIFICATE OF WORD COUNT cent eee n teen eee eee 47 PROOF OF SERVICE ...... 0... ccc ee cee eee eens 48 ill TABLE OF AUTHORITIES FEDERAL CASES Brooks v. Vill. ofRidgefield Park (3d Cir. 1999) 185 F.3d 130 2...cecnet eee e teenies 36 Rossi v. Motion Picture Ass’n (9th Cir. 2004) 391 F.3d 1000 2...cecenee e eens 35 STATE CASES Arias v. Superior Court (2009) 46 Cal.4th 969 20...ccceens Lene 3, 6,7 Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472 2.0.0...ces 6, 15, 16, 31 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 2.0...eeeeens 15, 21, 29 Cornette v. Dep’t ofTransp. (2001) 26 Cal.4th 63 00...eccece eee e nee nes 23 Doe v. City ofLos Angeles (2007) 42 Cal.4th 531 2.0.0... cee eee eeefetes 43 Elk Hills Power, LLC v. Bd. ofEqualization (2013) 57 Cal.4th 593 .........cece eee e eee nee eee eens 16, 24 Flannery v. Prentice (2001) =: 26 Cal.4th $72 2.0.0... eee eee eeecence cece eens 31 Frog Creek Partners, LLC v. Vance Brown,Inc. (2012) 206 Cal.App.4th 515 .............0.. bcc eee e ene ees 16, 29 Green v. California (2007) 42 Cal.4th 254 ............ beeen cence eee een e nes 16 Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th 482 00...eeeeens 15, 16 iv Home DepotU.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210.00... cee cece eee e eevee eee ee eee 6,15 In re Hoddinott (1996) 12 Cal.4th 992 20.eeneen eens 43 Indus. Welfare Comm’n v. Superior Court (1980) 27 Cal.3d 690 2...cccee ee eens 4, 24, 29 Martinez v. Combs (2010) 49 Cal4th 35 ............ cen enn een teen eee eens 29 Murphy v. Kenneth Cole Productions, Inc. (2007) AO Cal.4th 1094 2...eeeeee ees 29 Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, superseded by statute on other grounds ......... 43 People v. Braxton (2004) 34 Cal.4th 798 0...tenteee ee 15 People v. Conway (1994) 25 Cal.App.4th 385 2...ceeteens 35: ' People v. Dillon (1983) 34 Cal.3d 441oceeee e ene 21, 23 People v. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471 oo.eecteee eens 43 People v. Pac. Land Research Co. (1977) 20 Cal.3d 10 2.ccccee eee eee eens 7 Ramirez v. Yosemite Water Co. (1999) | 20 Cal.4th 785 00...eteene 37 DOCKETED CASES Brown v. Wal-Mart Stores, Inc., 9th Cir. 12-17623 .............. 3,15 Hendersonetal. v. JP Morgan Chase Bank, N.A., Oth Cir. No. 13-56095 2...ecceeeee 2 Kilby v. CVS Pharmacy, Inc., 9th Cir. No. 12-56130 ............ 2, 20 STATUTES AND REGULATIONS California Labor Code 34 §1193.5 oo.eee eee Lace cece eee tent enenneees 6. Os6 S1198ceeeteen eens 4 §2698 ef SEQ... ceceeee eee eens 1... 3,6 §2699ooeeeen een eee eens 6, 7, 40 8 California Code of Regulations §S110002eeeteen e beeen«6 SLIO1O(14) 06.neee 5 §1102014) 2.0.ceeeen ee eee eens 5 §11030(14) 2...ceeeee ene tent e eens 5 §11040(14) ....... 0. eee ccc cee e eee eens 1 §11040(2) oocee e eeecece eee 19, 31 §11050(14) 2.0.eeeeedee e eee eaes 5 §11060(14) .... 0... eee eee eee bcc ened eee e enna 5 S11070(2) 2...eee eee beeen eee eee 32 SLLOTO(L1) 0.ceecee ee eens 22 SL1O70(14) 0...eeeeeens 1 0 O50), 5 §1109014) 2.eceee ee teens 5 SL1L100(Q2) 2.ceeee teens 31 S11100(14) 2.ccceee eee nes 5,31 SLL1L1014) 20ceceeens 5 S11120(14) 2...e eeen n eens 5 §11130(14) 0.centteen ene 5 §11140(13) ........ eee eee eee. beeen eee e eens 5 SILISO(14) 2.eeeeens 5 §11160(12) 2.eneeee eens 5 SLLLTOcencee een een een eens 6 IWC WAGE ORDERS Wage Order 4-200] 2.0... cccentnes passim Wage Order 7-200] 2...beetspassim vi Wage Order 14-2001 .... 0.0... .-. 5 Wage Order 16-2001 2.0...neeeens 5 Wage Order 17-2001 2.0...cceee neas 6 RULES California Rule of Court 8.548 0.0... 0.eee 1,15 MISCELLANEOUS Black’s Law Dictionary (Ath ed. 1951) 2.0.2.0... 00. eee eee ... 18 Halim & Omar, A Review ofHealth Effects Associated With Prolonged Standing in the Industrial Workplaces, 8 Int’l J. Res. & Revs. Applied Sci. 14 (2011) ................. 28 Merriam-Webster Collegiate Dictionary (11th ed. 2003) ..... 18, 20, 35 Sen. Rules Comm.Floor Analysis, $.B. 796, 2003-04 Reg. Sess. (Sept. 11, 0X0) )6 Tuchsen,et al., Prolonged Standing at Work and Hospitalisation Due to Varicose Veins: A 12 Year Prospective Study ofthe Danish Population, 62 Occupational Envtl. Med. 84 (2005), available at ; http://www.ncbi.nlm.nih.gov/pmc/articles/ PMC1740939 ........ 28 Zanderet al., Influence ofFlooring Conditions on Lower Leg Volume Following Prolonged Standing, 34 Int’! J. Indus. Ergonomics 279 (2004) 2.2.2... cccceeens 28 Vii QUESTIONS PRESENTED FOR REVIEW This Court has acceptedcertification of several questions concerning the properinterpretation of California’s “suitable seating” law, which | provides: “All working employeesshall be provided with suitable seats whenthe nature of the work reasonably permits the use of seats.” 8 CCR §§11040(14)(A), 11070(14)(A). Asset forth in the Ninth Circuit’s order requesting certification, the questions to be decidedare: 1) Doesthe 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? a) If the courts should construe “nature of the work” holistically, should the courts considerthe entire range of an employee’s duties if more than half of an employee’stimeis spent performingtasks that reasonably allow the useof 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) If an employerhasnotprovided any seat, doesa plaintiff need to prove what would constitute “suitable seats” to show the employer has violated §14(A)?Y” Y Alternative formulations of these questions were set forth in plaintiffs’ January 22, 2014 letter brief in support ofcertification, pursuant to Rule 8.548(e)(1). INTRODUCTION These certified questionsarise in two cases that were argued to a panel of the Ninth Circuit on December 2, 2013. The first case was brought as a class action by plaintiffNykeya Kilby, a former CVS Pharmacy Clerk/Cashier, who alleged that CVS violated Wage Order 7-2001 §14(A) by failing to provide seating forits cashiers at the checkout cashregisters where those cashiers performed such standard check-out functions as scanning and bagging merchandise, processing customer payments, and handing customerstheir receipts. See Kilby v. CVS Pharmacy, Inc. (9th Cir. No. 12-56130). The second case was brought as a class action by plaintiffs Kemah Henderson, Taquonna Lampkins, Carolyn Salazar, and Tamanna Dalton, all current or former JPMorgan Chase Bank (“Chase”) tellers, who alleged that Chase violated Wage Order 4-2001 §14(A)byfailing to provideseating atits teller counters whereits tellers conducted such customertransactions as accepting deposits, cashing checks, and handling withdrawals. See Hendersonet al. v. JP Morgan Chase Bank, N.A. (9th Cir. No. 13-56095). | Thetrial courts in both CVS and Chase deniedclass certification, and thetrial court in CVS also granted summary judgmentagainstplaintiff Kilby. In both cases, the courts construed §14(A) very narrowly, concluding that covered employeesare only entitled to suitable seating under California lawif: 1) all, or at least a majority, of the employee’s assigned work tasks permit the use of seats; 2) the employer,in its “business judgment,” agrees that its employee may work while seated; and 3) the employee has identified a particular type or makeof seat that is “suitable.” 2” Both CVS and Chase were brought pursuant to the Labor Code (continued...) Plaintiffs proposed a far more practical construction of §14(A) that ‘was basedon the plain language of the Wage Order andthe stated purpose of promoting workerhealth, welfare, and comfort. Underplaintiffs’ construction, §14(A) requires California employers to provide suitable seating to covered employees whenever those employees are performing work that, viewed objectively, can reasonably be performed while seated, even if those employees are assigned other additional job tasks during the course oftheir shifts that cannot reasonably be performed while seated. So construed, §14(A) embodies the [WC’s intent to ensure that employers provideseating to “all” covered employees during the periods of time (“when”) those employees are engaged in tasksthat, based on the inherent attributes of those tasks — such as their physical requirements, how long they take to perform, and how frequently they are performed(“the nature of the work’) — objectively can be performed from a seated position (“reasonably permits the use of seats”). Plaintiffs also demonstrated that §14(A) does not impose any burden on employees to request a specific type or modelof seat; and for that reason, that an employer’s failure to provide any seating where suitable seating is required establishes the employer’s primafacie liability. 2/ (...continued) Private Attorneys General Act of 2004 (“PAGA”), Labor Code §2698 et seq., which creates a private right of action for any “aggrieved employee”to seek civil penalties, on behalf of him orherself and other current or former employees, for violations of certain provisions of the Labor Code. Although PAGA claims may proceed withoutclass certification, Ariasv. Superior Court (2009)46 Cal.4th 969, 981 & n.5, plaintiffs in these cases chose to proceed on a class action basis. A third case involving similar claims was also argued before the Ninth Circuit on the same day as CVS and Chase, but the Ninth Circuit did not seek certification of the statutory construction issue in that case, Brown v. Wal-Mart Stores, Inc. (9th Cir. 12- 17623), in which the district court had granted class certification to plaintiff cashiers asserting §14(A) claims. FACTUAL AND PROCEDURAL BACKGROUND I. Statutory and Regulatory Framework In 1913, the California Legislature established the Industrial Welfare Commission (IWC), whichit authorized to regulate the wages, hours, and working conditions of California workers for the purpose of protecting worker health and welfare. See Indus. Welfare Comm’n y. Superior Court (1980) 27 Cal.3d 690, 700-01. The IWC was “vested with broadstatutory | authority to investigate ‘the comfort,health, safety, and welfare’ of the California employees underits aegis...and to establish...‘[t]he standard conditions of labor demanded bythe health and welfare of [such employees].”” Jd. (citations omitted). Although the [WC’s original mission | was focused on promoting the health and welfare of women and minors, the Legislature in 1973 broadened the IWC’s jurisdiction (without any change to the substance ofits mandate) “to establish minimum wages, maximum hours and standard conditions of employmentfor a// employees inthestate, men as well as women.” Id. The Legislature authorized the [WC to promulgate a series of Wage Orders to establish minimum “standard conditions oflabor,” which are incorporated by reference into Labor Code §1 198. Seventeen of those WageOrdersare industry- or occupation-specific, and include the two Wage Orders at issue: Wage Order 4-2001, whichapplies to all persons employed in “professional, technical, clerical, mechanical, and similar occupations;” and Wage Order 7-2001, whichappliesto all persons employed in the “mercantile industry.” Section 14 of the applicable Wage Orders imposes an affirmative obligation on employers in covered industries to provide suitable seating to their “working” employees. The suitable seating provisions in Wage Order 4-2001 and Wage Order 7-2001 are identical, and require in mandatory terms: (A) All working employees shall be provided with suitable seats whenthe nature of the work reasonably permits the use of seats. (B) When employeesare not engagedin the active duties of their employmentand the nature of the 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. This language has not changed since 1980. See ER 54-56, 107, 111, 126, 147, 168-69.2 Identical “seating” requirements are mandated by 14 ofthe industry- or occupation-specific Wage Orders. See 8 CCR §11010(14) (manufacturing industry); id. §1 1020(14) (personal service industry);id. §11030(14) (canning, freezing, and preserving industry); id. §11050(14) (public housekeepingindustry); id. §11060(14) (laundry,linen supply, dry _ cleaning, and dyeing industry); id. §11080(14) (industries handling products after harvest); id. §11090(14) (transportation industry); id. §11100(14) (amusementandrecreation industry); id. §11110(14) (broadcasting industry); id. §11120(14) (motion picture industry); id. §11130(14) (industries preparing agricultural products for market, on the farm); id. §11150(14) (household occupations).* 3 All citations to “ER”refer to the Excerpts of Record submitted to the Ninth Circuit in CVS. All citations to “Chase-ER”refer to the Excerpts of Record submitted to the Ninth Circuit in Chase. 4’ Two other Wage Orders (Wage Order 14-2001, covering “agricultural occupations,” and Wage Order 16-2001, covering “on-site occupationsin the construction,drilling, logging and mining industries”) contain seating mandates,butin different, industry-specific terms. See 8 CCR §11140(13) (“When the nature of the work reasonably permits the use (continued...) Before 2004, no private right of action existed for aggrieved employees to enforce the seating requirement in any of these Wage Orders. Instead, §14 was previously enforceable only by the California Labor Commissioner, see Labor Code §§1193.5, 1194.5; and like many other laws governing the workplace that were only enforceable through State-initiated litigation, enforcement was sporadic and the law was frequently ignored. See Arias, 46 Cal.4th at 980; Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.-App.4th 210, 223-24. | The Legislature enacted PAGA,the Labor Code Private Attorneys General Act of 2004 (Labor Code §2698et seq., Stats. 2003, ch. 906, §2, eff. Jan. 1, 2004), in 2003 after finding that the Labor Commissioner “was failing to effectively enforce labor law violations” because the State’s enforcement agencies were understaffed and inadequately funded. Sen. Rules Comm. Floor Analysis, S.B. 796, 2003-04 Reg. Sess. (Sept. 11, 2003); see Stats. 2003, S.B. No. 796, §1. PAGA created a private right of action, allowing aggrieved employees to sue on behalf of themselves, the State, and their co-workers, to recovercivil penalties for each pay period in whichtheir employers violated Labor Code and.[.WC Wage Order provisions that previously only the Labor Commissionercould enforce. See Labor Code §2699(a), (f); Home Depot, 191 Cal.App.4th at 221-22, 226 (employer’s noncompliance with suitable seating requirements ofWage 4 (...continued) of seats, suitable seats shall be provided for employees working onorat a machine.”); id. §11160(12) (“Where practicable and consistent with applicable industry-wide standards,all working employeesshall be provided with suitable seats when the nature and the process of the work performed reasonably permits the use of seats. This section shall not exceed regulations promulgated by the Occupational Safety and Health Standards Board.”’). Wage Order 17-2001, covering certain “Miscellaneous Employees,”has noseating provision. See id. §11170. There is a separate Minimum WageOrder, which hasno suchprovision either. See id. §11000. 6 Order 7-2001 §14(A) violates Labor Code §1198 and maybe enforced through PAGAprivate action); Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, 1478-79, 1481 (same). Under PAGA,aggrieved employeesare entitled to 25% ofthe civil penalties recovered, with the remaining 75% paid to the California Labor and Workforce Development Agencyto be used for increased labor law enforcement andtraining. Labor Code §2699(i). . The declared purpose ofPAGA was “to supplement enforcement actions by public agencies, which lack adequate resourcesto bringall such actions themselves.” Arias, 46 Cal.4th at 986. Because “[a]n employee plaintiff suing, as here, under the Labor Code Private Attorneys General Act of 2004, does so as the proxy or agent of the state’s labor law enforcement agencies,” an action to recovercivil penalties under PAGA | “ig fundamentally a law enforcement action designed to protect the public and not to benefit private parties.’”” Jd. (quoting People v. Pac. Land Research Co. (1977) 20 Cal.3d 10, 17). Il. Plaintiffs Presented Evidence That Their Employers Failed to Provide Any Seating For Employees Performing Stationary Work at Fixed Locations. Because PAGApenalties accrue per payperiod,plaintiffs seeking to obtain the full recovery ofcivil penalties permitted by PAGA need only establish that their employerfailed to provide suitable seating at least once during any given pay period whenthenature ofthe work reasonably permitted theuse of seats. See Labor Code §2699(f)(2). Plaintiffs in CVS and Chase presented an abundance of evidence establishing that they regularly performed workthat reasonably permitted the use of seats. Yet their employers never provided them anyseating. {II | /// A. The Evidence in Kilby v. CVS Pharmacy, Inc. Plaintiff Kilby sued CVS on behalf of herself and approximately 17,000 other current or former CVS “Clerk/Cashiers” in California who were not provided with any seating when operating CVS’sfront-end cash registers. ER 786. Although CVS admitted that it provided workstation seating as a medical accommodationto its Clerk/Cashiers who were temporarily unable to stand while working, CVS otherwise had an undisputed policy that required all Clerk/Cashiers in its California retail stores to stand throughout their work day, except during meal periods and rest breaks. See ER 920-21. The record evidence establishes that Ms. Kilby spent approximately 90% of hertime operating a cashregister at the front of the store. ER 697, 847-60. Her primary tasks while stationed at the cash register were standard checkout functions, namely scanning and bagging merchandise, processing customer payments, and handing customerstheir receipts. ER 697, 847-60. The rest of her work time — typically at the beginning and end of each shift — was spent on unrelated tasks (for which she doesnotassert any entitlement to seating) suchas gathering shoppingcarts and re-stocking display cases. ER 249, 697. Thirty CVS Clerk/Cashiers submitted declarations in support of Ms. Kilby’s motion forclass certification (and re-submitted those declarations in opposition to CVS’s motion for summaryjudgmentas to Ms. Kilby’s individual seating claim), attesting that they, too, spent mostoftheir shifts stationed at the cash register performing routine checkout functions.” 5S’ See ER 705-06, 708, 710, 713, 715, 718, 721, 724, 727, 730-31, 733-34, 736, 738, 740-41, 743, 745-46, 748-49, 751-52, 754, 757, 759, 761, 763, 766, 769, 772, 775, 778, 780, 783. Although Clerk/Cashiers stationed at the cash register occasionally need to leave their workstations, for (continued...) CVS’s own declarant, a CVS store manager, confirmed that even “[o]n slow days, the primary clerk/cashier may ... be ringing [up customer | transactions] 75% ofthe time,” while “[o]n busier days, a primary cashier might ring customertransactions approximately 85-90% oftheir shift.” ER 684. A shift for a CVS Clerk/Cashier can last for as long as nine hours. See, e.g., ER 677, 727, 743. Ms.Kilby introduced considerable evidence that the nature of a CVS Clerk/Cashier’s work while stationedat the cash register reasonablypermits the use of seats. For example, seven CVS Clerk/Cashiers submitted declarations that they actually had performedtheir checkout functions successfully when permitted on occasionto use a chair or stool as a medical - accommodation. See ER 710, 730, 740, 745-46, 769-70, 775-76, 783-84. Ms. Kilby also offered an expert report by an industrial and workplace ergonomics expert, Professor Steven L. Johnson, who concluded based on his observations of several CVSstores that the duties of a CVS Clerk/Cashier while operating a cash register reasonably permit the use of a seat. ER 26, 1021-33. Prof. Johnson also noted in his expert report that many supermarket andretail stores throughout Europe and Korea provide seating for their cashiers, further demonstrating that checkoutfunctions performedbyretail store cashiers like plaintiff can reasonably be performed from a seated position. ER 1018, 1027. In response, CVSpointedto its own training andpolicy materials, whichdirected its Clerk/Cashiers to standat all times including while . / (...continued) example, toretrieve tobacco and other controlled merchandise, or to scan “unusually large items that will not fit on the checkout counter, many Clerk/Cashiers testified that this happens only a “few times each shift.” ER . 713, 721, 736, 761, 766, 772, 778, 780. Others similarly testified that these duties occuronly infrequently during the time Clerk/Cashiersare assigned to operate the cash register. See ER 710, 724, 730, 733, 745, 748, 751, 757. 9 ringing up customersat the cash register. CVS askedthe district court to deferto its “business judgment that employees,including Clerk/Cashiers, best provide customerservice by standing, as opposed to sitting or leaning.” ER 200. However, CVSdid not cite any evidence — such as actual surveys or studies regarding customerperceptions of seated cashiers or the impact, if any, of seating cashiers oncheckoutefficiency — to establish anything morethan its naked belief that standing cashiers provide better customer service. See ER 300, 306-08, 904-05, 930-31. The objective evidence established (or atthe very least created a genuine dispute) that the nature of a CVSClerk/Cashier’s checkout work at the cash register reasonably permits the use ofseats. B. The Evidence in Henderson v. JPMorgan Chase Bank Plaintiffs Henderson et al sued Chase on behalf of themselves and approximately 8,000 other current and former Chase bank tellers in _ California, based on the bank’s classwide policy of not providing seatsat the teller counters fortellers to use while assisting customers with financial transactions. Although Chase tellers perform a small numberof discrete job duties away from the teller counter that require standing or movement (such as opening and closing the branch, occasionally walking to the vault, or maintaining the ATM (see Chase-ER 291-95) — tasks for whichplaintiffs do notassert any entitlement to seating) — the district court found that the vast majority (at least 50%, and in many cases as much as 90%) of the Chasetellers’ total worktimeis spentat the teller counters assisting customers. Chase-ER 13. Chase has a nationwidepolicy, applicableto all 900-plus California branches, not to provide any seating toits tellers. | Chase-ER 301-02. In support ofclass certification, plaintiffs submitted considerable evidencethat the duties commonly performedbytellers at Chase’s teller 10 counters can reasonably be performed while seated. According to Chase’s owncorporate designee, the essential and most commonjob duty for Chase tellers is to assist customers at the teller counter by accepting deposits, cashing checks, and handling withdrawals. Chase-ER 285-87; see also Chase-ER 296-99. Plaintiffs and other Chasetellers submitted declarations confirmingthat tellers spend mostoftheir time performing those tasks. See Chase-ER 350, 355, 360, 365, 370, 375, 380, 385, 390. Performing these basic teller functions does not regularly require tellers to walk about, as the office tools and materials used most frequently by Chasetellers (such asthe computer, cash drawer, PIN pad, card reader, sorting bins, scanner, and receipt printer) are physically located onthe teller counter within arm’s reach. Chase-ER 42, 44, 46, 272-73, 275-82, 393-94. That Chasetellers could reasonably perform their teller-counter work while seated is further demonstrated by the undisputed fact, acknowledged by another corporate designee, that Chase has in the past providedteller stools as a medical accommodation to hundredsofits tellers for use at the teller counter, and that thosetellers successfully performed their essential teller-counter functions even while seated. See, e.g., Chase-ER 351, 361, 366. Moreover,tellers are permitted to sit at many of Chase’s competitor - banks in California, including Wells Fargo, Citibank, and Union Bank. See, e.g., Chase-ER 345, 350, 355, 360, 365, 370. In fact, tellers were provided seats in the very Washington Mutual branches that Chase acquired whenit first entered the California market in 2008, which seats Chase affirmatively chose to remove as part ofits branch re-design. See Chase-ER 309-14. Indeed, the practice of providing seats for bank tellers is so commonplace throughout the banking industry that manufacturers have designed and marketed a stool specifically for use bytellers, called the Steelcase Teller Stool (Criterion). According to Chase’s occupationalhealth nursemanager 11 and corporate designee, the Steelcase Teller Stool “is a stool that is standard to be purchased for a [Chase]teller in any state, including California,ifit is an approved accommodation.” Chase-ER 322. Although Chase attemptedto justify its no-seating policy by asserting that “from a customer service perspectiveit’s better to be standing,” it was unable to point to a single study comparing or analyzing customerperceptions of standingtellers versusseated tellers. Chase-ER 306-07. As an objective matter, then, the evidence showedthat the nature of a Chaseteller’s work at the teller counter reasonably permits the use of seats. Ill. The Trial Courts Impermissibly Based Their Rulings on Factors Other Than Whetherthe Nature of the Work for WhichPlaintiffs Sought Seating Could Reasonably Be Performed While Seated. The CVStrial court denied summaryjudgment and class certification, and the Chasetrial court deniedclass certification, based on: 1) the nature of other workthat plaintiff employees sometimes perform whennot assigned to the cash register orteller counter; 2) defendants’ preference that their employees standatall times while working; and 3) plaintiffs’ failure to demonstrate that the same type of seating would be “suitable” for all employer branches. Aswill be demonstrated further below,the first two factors are irrelevant to whether the nature of the work performed at the CVS cash register or Chaseteller counter reasonably permits the use of seats, while the third is not plaintiffs’ burden to proveaspart of their prima facie case under §14(A). A. The CVS Trial Court’s Rulings The CVStrial court acknowledgedthat, “generally speaking, an individual can operate a cash register from a seated position.” ER 20. 12 Nevertheless, in granting summary judgmentto CVS,the court concluded that the “‘nature of the work’ performed by an employee” for purposes of §14(A) “must be consideredin light of that individual’s entire range of assigned duties in order to determine whether the work permits the use of a seat or requires standing.” ER 9. The court agreed with CVSthat an employer’s “business expectations for a job are relevant” in determining whether the nature of the work reasonably permits the use ofseats, “such that if CVS hires employeesto stand while working a cash register because CVS wants to project a certain image, then those employees would not be performing their job if they were seated.” ER 9. Applying this construction of §14(A), the court looked to CVS’s written job description for the Clerk/Cashierposition, which lists 26 job “functions,” and concluded that because CVS “expects Clerk/Cashiers to perform the majority of their job duties [(including operating a cash register)] while standing,” a Clerk/Cashier’s “job as a whole” requires | standing, and therefore §14(A) affords such workers noprotection. ER 10. The court gave no consideration to the undisputed evidence that Ms. Kilby spent approximately 90% ofher time operating a cashregister at a fixed location, or to the physical requirements of that work. ER 697, 847-60. Instead, the court merely counted up the numberoftaskslisted in the job description without giving any weight to factors such as duration, | frequency, or core importance, and largely deferred to CVS’spreference that its Clerk/Cashiers stand throughout the entirety of their up-to-nine-hour shifts, regardless of the physical demandsof the tasks performed. The court in CVS had previously applied this same impermissible construction of §14(A) as the basis for denying Ms. Kilby’s earlier motion for class certification, holding that any inquiry into whetherthe nature of a CVSClerk/Cashier’s work reasonably permits the use of seats would 13 require “an individualized, fact-intensive analysis to determine how each Clerk/Cashier spends his or her time.” ER 20. Thetrial court also denied class certification based on its conclusion that whether the nature of the work “reasonably permits” the use of seats turns in part on what modifications an employer must maketo its workstations to come into compliance with §14(A), and that whatconstitutes a “suitable seat” may vary from store to store. ER 20. | B. The Chase Trial Court’s Ruling Thedistrict court in Chase also deniedclasscertification, despite finding that Chase’s tellers spend the majority of their time workingat the teller counter (Chase-ER 13), based on its express adoption of the CVStrial court’s conclusion that §14(A) requires seating only if the “job[]” as a whole (comprised ofthe entire range of an employee’sassigned duties) “can be performed while seated.” Chase-ER 10. In denyingclass certification, the court in Chase relied on evidence that, when not working at the teller counter, Chase’s tellers spend varying amounts of time performing other various tasks away from their teller stations. Chase-ER 12-15. Because someofthose other tasks require movement, the court concludedthat it would have to conduct “individualized inquir[ies] ofhow each teller spendshis or her time” throughout each workday to determine whether each employee’s “job [as a whole]” reasonably permits the use of seats. Chase-ER 13. . As a secondbasis for denying class certification, the court citedits conclusion that “t]he question of whattypeof seat is suitable for tellers also does not produce a commonanswer.” Chase-ER 14. Noting differences in workplace configurations and “incidental differences” among Chase’s branches (“such asthe location ofprinters”), the court concluded that it “would be required to conduct an individualized analysis to | 14 determine whetherseats are suitable atteller stations, what kind ofseats would be suitable, and whether accommodations would be necessary to permit seating.” Chase-ER15. IV. Proceedings in the Ninth Circuit Ms. Kilby appealed the CVStrial court’s grant of summaryjudgment and denial of class certification, andMs. Henderson and her co-plaintiffs appealed the Chasetrial court’s denial of class certification. The Ninth Circuit set argument for both appeals on the same day, along with a third - case also involving PAGAclaimsfor violation of §14(A), in whichthetrial court had grantedcertification of a class of Wal-mart retail cashiers who alleged they had been unlawfully denied seats. See Brown v. Wal-Mart Stores, Inc. (9th Cir. 12-17623). On December31, 2013, the Ninth Circuit issued an order pursuant to Rule of Court 8.548, asking this Court to decide the properinterpretation of § 14(A) in Wage Orders 4-2001 and 7-2001. To aid in this statutory construction, the Ninth Circuit posed to this Court the three specific questions(the first of which contains a subpart) listed above. This Court granted the Ninth Circuit’s certification request on March 14, 2014. - LEGAL STANDARD | “The IWC’s wageorders are to be accorded the samedignity as statutes.” Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1027. “‘As quasi-legislative regulations, the wageorders are to be construed in accordancewith the ordinary principles ofstatutory interpretation.’” Bright, 189 Cal.App.4th at 1480 (citation omitted). The fundamental goal of statutory interpretation is “to determine and giveeffect to the intent of the enacting legislative body.” People v. Braxton (2004) 34 Cal.4th 798, 810; accord Home Depot, 191 Cal.App.4th at 216. To accomplish this goal, courts “first examine the words themselves because 15 the statutory language is generally the most reliable indicator oflegislative intent.... The words ofthe statute should be given their ordinary and usual meaning and should beconstrued in their statutory context.” Holland v. Assessment Appeals Bd. No. I (2014) 58 Cal.4th 482, 490(internal quotation marksandcitation omitted). “<'P]lain meaning controls the court’s interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court need, orshould, go beyond that pure expression oflegislative intent.’” Bright, 189 Cal.App.4th at 1477 (citing Green v. California (2007) 42 Cal.4th 254, 260). If the statutory language is ambiguous, the Court “may consider various extrinsic aids, including the purposeofthe statute, the evils to be remedied,the legislative history, public policy, and the statutory scheme encompassingthestatute.” Holland, 58 Cal.4th at 490 (internal quotation marks andcitations omitted). A “statute should be construed with reference to the whole system of law of whichit is a part so that all may be harmonized and haveeffect.” Elk Hills Power, LLC v. Bd. ofEqualization (2013) 57 Cal.4th 593, 610 (internal quotation marks andcitation omitted). The Court “mustselect the construction that comports most closely with the apparentintent of the Legislature, with a view to promoting rather than defeating the general purpose ofthe statute, and avoid aninterpretation that would lead to absurd consequences.” Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, 524 (internal quotation marks and citation omitted). | ARGUMENT Section 14(A)provides: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Asreflected in this simple and straightforward language, the IWC sought to accomplish its worker protection goals by requiring 16 employers to provideseats to “all” covered employees, during the periods of time (“when”) those employees are engaged in job tasks whose inherent physicalcharacteristics (“nature of the work”) are such that the employees objectively could perform those tasks while seated (“reasonably permits the use of seats”). L. QUESTION1: Does the phrase “nature of the work” refer to an individual task or duty that an employee performsduring 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? QUESTIONla: If the 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? Simplystated, the first question and sub-part asks whether: 1) covered employees mustbe able to perform all or a majority of their assigned “work” (whether measured in work time or numberoftasks) while seated in order to be entitled to any seating under §14(A); or instead whether: 2) covered employeesare entitled to seating when the natureof the “work” being performed ata particular time reasonably permits the use of seats, without havingto satisfy a specific threshold percentage of time spent on suchtasks. | | . Chase and CVSadvocate the former construction, which requires courts to examine the entire range of assigned duties that may arise in the. course of employmentto determine whether some percentageofthose duties (100%, 50%, or somewhere in between — neither defendants northe district courts have beenclear) requires standing or can be performed while seated; and thento classify the entire “job as a whole”as onethateither categorically “reasonably permits the use ofseats” (in which case defendants contendthe entire job would be subject to the labor protections 17 of §14(A), but not those of §14(B)) or categorically “requires standing”(in which case defendants contendthe entire job would be subject to the labor protections of §14(B), but not §14(A)), see supraat5. Neither the plain text nor the regulatory history and purpose ofthe Wage Orders supports defendants’ construction, which, when applied to real-world work scenarios, inevitably yields inconsistent and, we submit, absurd outcomes. In the context of §14(A), the phrase “nature of the work” cannotlogically refer to the entire aggregation of assigned duties that may arise in the course of employment. Instead, it must refer to the discrete task or set of tasks that an employee performsat any given time during the work day. Further, while anemployee whospends morethan half his or her time performing tasks that reasonably allow the use ofa seat certainly is entitled to a seat for use while performingthosetasks, nothing in the text or history of the Wage Order warrants withholding the protection of the law from those employees who happento spend49% orless of their total employmenttime on such seating-permitted tasks. A. The Text of §14 Supports Construing “Nature of the Work”as the Job Task or Tasks Being Performed, Not an Unweighted Aggregation of an Employee’s Every Assignment. The most commonplain meaning dictionary definition of “work”is “task” or “duty.” The Merriam-Webster Collegiate Dictionary (11th ed. 2003) defines “work” as an “activity in which one exerts strength or faculties to do or perform something”or “a specific task, duty, function, or assignmentoften being a part or phase of somelargeractivity.” | Other dictionaries define “work”in similarly functional, task-oriented terms. See, e.g., Black’s Law Dictionary (4th ed. 1951) (“To exert one’s self for a purpose,to put forth effort for the attainmentof an object, to be engaged in the performanceofa task, duty, or the like”). In plain, simple terms, 18 §14(A) requires employers to provide covered employeesa suitable seat during those times whenthenature(i.e., the objective characteristics) of the specific task, duty, function, or assignmentthey are performing reasonably permits the use of seats. Plaintiffs’ commonsense construction of the phrase “nature of the work”as focused onthe particular task or set of tasks at hand, rather than the “entire range” of an employee’s conceivable assignments, is further supported by the IWC’s use ofthe temporal modifier “when.” The IWC undoubtedly understood that nearly all jobs comprise a variety of tasks, some which require standing and some which maybe successfully accomplished while seated; andthat few,if any, of the occupations described in theWage Orders never involve standing or movement. For ~ example, “teacher” is one of the covered occupations under Wage Order4- 2001. See 8 CCR §11040(2)(O). While actively teaching a classroom of students, a teacher’s job duties may require some standing (for example, while writing on the blackboard) and some walking around the classroom. But teachers also perform manyothertasks (such as grading papers, preparing lesson plans, and attending faculty meetings) that can reasonably be accomplished while seated. The IWC’suse of the temporal word | “when” allows §14 to apply in a sensible and logical way to protect workers in occupations comprising a mix of tasks, some of which require standing, others of which permit sitting.” The plain meaning dictionary definition of § Wage Order 4-2001 also covers many occupationstypically considered “desk jobs,” such as copy readers; copy writers; editors; proof readers; accountants; computer programmers;typists; librarians; laboratory workers; and secretaries. 8 CCR §11040(2)(O). Even these jobsalso entail some duties requiring mobility. A copy reader, copy writer, editor, proof reader, accountant, computer programmer, or typist may spend most ofthe time typing at a desk, but may occasionally have to retrieve documents from (continued...) 19 “when”is “at or during the time that,” or “at any or every timethat.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). Thus, by requiring employersto “provide[]” employees with suitable seats “when” the nature of the work reasonably permits the use of seats (§14(A)), the IWC madeclear that employers must provide workstation seating only “during the time that” employees perform tasks that can be performed while seated. As applied to our teacher example, §14(A) providesa clear directive requiring seating “when” grading examsor preparing lesson plans, even if no workstation seating is required “when” writing on the chalkboard.” In contrast, the construction adopted by the trial courts provides no guidanceas to “when” an employerhas an obligation to provide seating. To construe §14(A) as requiring employers to provide seats only if an employees’ “entire range of assigned duties” reasonably permits the use of _ £ (continued) the printer or deliver documents to a supervisor. A librarian may spend most of the time answering questions at the reference desk, but may ~ occasionally have to shelve books. A laboratory worker may spend most of the time looking at sample specimen through a microscope, but may occasionally have to put chemicals away for storage or clean large pieces of equipment. A secretary may spend mostofthe time answering phones and typing e-mails, but may occasionally have to walk to the photocopy machineor the filing room. Y During the times that employees are assignedto tasks that require standing, §14(B) requires employers to“place[]” suitable seating nearby for employees to use “[w]hen”notactively engaged in those duties. As the IWC madeclearin its 1976 Summary of Basic Provisions, §14(B)is not meant to apply during breaktimes,but rather during “lulls in operation.” Request for Judicial Notice, Kilby v. CVS Pharmacy, Inc. (9th Cir. Case No. 12-56130), Dkt. No. 10-1 (“RIN”), Ex. 1 at 3 (“Seats are required where the job permits the use of seats, and employees who haveto stand at workare to have a place nearby where they can sit whenthereare lulls in operation.”). 20 seats would divest the word “when”of all meaning, and would ultimately render §14(A) nonsensical. Again, taking the example of a teacher, a court would haveto look at the teacher’s “entire range ofassigned duties” and determine whether, “as a whole,”they either “reasonably permit[] the use of seats”or “require[] standing.”® If the court determined that a teacher’s duties “as a whole”permitted the use ofseats, the “nature of the work” wouldatall times “reasonably permit the use of seats.” The only way to give effect to the word “when”in the phrase “when the nature of the work reasonably permits the use ofseats,” then, would beto require the employer to provideseats at all times, including when those employees are engaged in tasks requiring movement. The IWC could not have intended such an illogical application of the simple word “when.” Other sections of the IWC Wage Orders fully support the plain- meaning conclusion that the [WC intended the phrase “nature of the work” to refer to the character of the task or tasks at hand, not an aggregated, unweighted assessment of whether the employee’s job “as a whole” should be characterized as always permitting seats or always requiring standing. See People v. Dillon (1983) 34 Cal.3d 441, 468 (“[I]tis generally presumed that when a wordis usedin a particular sense in one part of a statute,it is intended to have the same meaningif it appears in anotherpart of the same statute.”’), superseded by statute on other grounds. For example, the phrase “when the nature of the work” also appears in Wage Order 7-2001 §11, which governs the circumstances when employers can require their employees to take “on-duty” meals periods (an- exception to the usual rule requiring 30-minute mealperiods in whichthe employeeis relieved of all duty and mustbe entirely free from employer 8 Thetrial courts provided no guidance as to how to make such a determination. 21 control, Brinker, 53 Cal.4th at 1035). In relevantpart, this section of the Wage Orderprovides: Unless the employeeis relieved ofall duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature ofthe work prevents an employeefrom being relieved ofall duty and whenby written agreement between the parties an on-the-job paid mealis agreedto. 8 CCR §11070(11)(C) (emphasis added). Presumably, the IWC intended this exception to be limited to shifts during which the nature of the employees’ assigned tasks would prevent them from leaving the workplace to take a traditional off-duty meal period. Applying the CVS and Chase district courts’ work-duties-as-a-whole construction of the phrase “nature of the work,” however, would result in this narrow exception applyingto all employees who sometimes perform work that could require them to remain on call, whether or not they actually perform those tasks during meal periods. The IWC wouldnot likely have intended to leave employees unprotected in that manner. | The Section 1 exceptions in each IWC Wage Order further demonstrate thatwhen the IWC intended to require an assessmentofthe employee’s job “as a whole,”it knew how to makethatintentclear. Section 1 creates exemptions for several categories of high-level employees,including executives, professionals, and administrators, andit defines those categories of employeesas either categorically exempt or categorically non-exempt based on a time- and task-based assessment of their job responsibilities as a whole. An exempt executive, for example, is defined in these Wage Orders as a person “tw]ho customarily and regularly directs the work of two or more other employees therein,” “[w]ho customarily and regularly exercises discretion and independent judgment,” 22 and “[w]ho is primarily engaged in duties which meetthetest of the exemption.” Wage Order 7-2001 §1(A)(1)(b), (d), (e) (emphases added); see also id. §1(A)(2)(b),(c), (®); id. §1(A)(3)(b), (c), (g), (h). Section 2 of the Wage Order,in turn, defines “[p]rimarily” as “more than one-half the employee’s work time.” Jd. §2(K) Byusing the adverbs “customarily,” “regularly,” and “primarily,” the IWC madeclear that the applicability of each of these exemptions must be determined by assessing an employee’s entire range of assigned duties, or job as a whole. Had the IWC intended an employee’s right to seating to depend on a comparative assessment of an employee’s entire range of duties, it could have written §14(A)to read, “All working employeesshall be provided with suitable seats if they primarily perform work whose nature reasonably permits the use ofseats.” No such weighing requirement appears in Section 14, however. “When onepart of a statute contains a term or provision, the omission ofthat term or provision from anotherpart ofthe statute indicates the Legislature intended to conveya different meaning.” Cornette v. Dep’t ofTransp. (2001) 26 Cal.4th 63, 73. Finally, §1(A)(1)(e) of the Wage Orders requires courts to compare the time an employee devotes to “exempt work” versus “non-exempt work” in determining whether the employeeis “primarily engagedin duties which — meetthe test ofthe exemption.” Thiscomparison would make sense only if “work”referred to the particular duties performedat any given time, rather than to the employee’s “job as a whole.” Presumably, the [WC intended “work” to have the same meaning in §1 as in §14(A). See Dillon, 34 Cal.3d at 468. Consequently, just as §1 contemplates a single employee having both non-exempt work and exempt work, §14 contemplates a single employee having both sitting-permitting work and standing-requiring work. Unlike §1, however, §14 does not include any requirementthat an employee 23 be “primarily,” “customarily,” or “regularly” engaged in sitting-permitting work for the mandatory seating provision to apply. B. The Regulatory History and Purpose of §14 Supports Construing “Nature of the Work”as the Job Task or Tasks Being Performed, Not the Aggregate of an Employee’s Every Assignment. Whenthe plain language of a statutory provisionis clear, resort to extrinsic evidence is not necessary. See Elk Hills Power, 57 Cal.4th at 609- 10. Nonetheless, the available extrinsic evidence — in particular, the | regulatory history and the overarching purpose of the Wage Orders — lends - strong support to plaintiffs’ construction of §14(A). | Priorversions of the IWC’s suitable seating provision establish a consistent administrative intent to ensure the availability of suitable seating to employees to the maximum extent possible. The IWC wascreated in 1913 by the California Legislature and charged with “establish{ing]... ‘[t]he standard conditions of labor demandedby the health and welfare of | [such employees].’” Indus. Welfare Comm’n, 27 Cal.3d at 700-01. One of the IWC’s earliest concerns (expressed as a mandate in the original 1919 version of what.is now §14) was to ensure that employers provide suitable workstation seating to female employees employed in the mercantile industry. Theearliest version of a Wage Orderseating provision (which reversed the order of the current §14(A) and (B)) stated in broad language: (a) Seats of the properheight shall be providedin all rooms to the numberofat least one seat for every two women employed and evenly distributed in that proportion. Women shall be permitted to use the seats at all times when not engagedin the active duties of their occupation. No orderor ~ instruction shall be issued by any employer or his representative whichshall conflict with this provision. In any room where manufacturing,altering, repairing, finishing, cleaning or laundering is carried on, the following provision shall also apply: 24 (b) As far as, and to whateverextent, in the judgment of the Commission,the nature of the work permits, the following provision shall be effective: Seats shall be provided at work tables or machines for each and every woman or minor employed, and such seats shall be capable of such adjustment and shall be kept so adjusted to the work tables or machines that the position of the workerrelative to the work shall be substantially the same, whether seated or standing. Work tables, including sorting belts, shall be of such dimensions and design that there are no physical impedimentsto efficient workin either a sitting or standing position, and individually adjusted foot rests shall be provided. ER 52, 75. This first iteration of the suitable seating provision informs the meaning of the current §14(A)in at least three ways. First, the phrase “{a]s far as, and to whatever extent,” supports the conclusion that the IWC meantthe term “when”in the current Wage Order to mean that a seat must be provided whenever the employee is performing a task or tasks that reasonably permit seating. By requiring seats for employees “(als far as, and to whateverextent, ... the nature of the work _ permits,” the IWC recognized that mostjobs are not comprised of a single task, but instead involve a combination of duties, some of which can reasonably be performed while seated, others not. The IWC made clearthat “Tals far as, and to whatever extent” possible an employee’s work can be performed while seated, suitable seating must be provided. The current version of §14(A), requiring suitable seating “when the natureof the work reasonably permits theuse of seats,” incorporates that same concept. _ Second, the IWC’s directive in the 1919 Wage Orderthat seatsbe provided “at work tables or machines”also supports plaintiffs’ construction that the IWC intendeda task-specific assessment of whenseating is required. This early language required employersto provide seats at a work table, machine, sorting belt, or other similar fixed location,if the “nature of 25 the work” performedat that workstation could reasonably be accomplished while seated, even if employees could stand while performing those duties, and evenif their job duties as a whole included other tasks requiring them to move about the workplace. When the work tasks performedat a particular workstation (such as a cashregisteror a teller counter) reasonably permit the use ofseats, the IWC’sintent wasclearly to ensure that workstation seating be provided for all employees to use when assigned to that particular workstation. Third, the original suitable seating provision makes clearthat the IWCintendedthe protections of what is now §14(A) and §14(B) to be cumulative rather than mutually exclusive, affording workers complementary protections during a single shift. The 1919 version started with the generalprinciple that “[s]eats...shall be provided in all rooms...[and w]omenshall be permitted to use the seatsat all times when not engagedin the active duties of their occupation.” This first provision, now codified in §14(B), required employers to provide seats in reasonable proximity to the work area for employeesto use during lulls in operation when they were otherwise requiredby the natureof their duties to stand. The seating law then included the followingtransitional language (before what is now subsection §14(A)): In any room where manufacturing, altering, repairing, finishing, cleaning or laundering is carried on, the following provision shall also apply: ER 52, 75 (emphasis added). By this language, the IWC sought to ensure that seats would be provided forall employeesto use “at all times when not _engagedin the active duties of their occupation,” and in addition, that seats would be provided at the employees’ work tables or machines for those employees when engagedin tasks at those workstations that permit seating. 26 This intent remains manifest in the current structure of §14(A) and (B). The two subsections of §14, read together, reflect the [WC’s understanding that an employee’s duties likely may include somethat require standing (when §14(B) applies) and others that reasonably permit the use of seats (when §14(A) applies). Nothing about the structure of §14 indicates that §14(A) requires workplace seating only for the rare employee whose“entire range ofassigned duties” can all be performed while seated — a construction that would enable employers to avoid providing any workstation seating simply by adding one or more standing-only tasks to every employee’s job description. Even the factory seamstress whose job functions the IWC might have been considering whenitinitially adopted the suitable seating provision in 1919 performs some duties that require standing or movement.” Asthe scope of the IWC’s jurisdiction has broadened, so too has the languageofthis seating law, which(like all Wage Order provisions) now .. extends to all workers in covered industries, male and female. But despite minorrevisions to the language of §14(A) overthe years, the central purposeofthe seating law has remained unchanged: to promote worker health, welfare, and comfort, and to prevent employers from forcing employees to stand when, froman objective perspective, those employees % For example, an employer could define a seamstress’s job as involving four discrete tasks: 1) bringing materials from the stockroom to her workstation; 2) sewing; 3) periodically restocking her workstation with thread; and 4) delivering the finished garmentto the sorting room. A seamstress could spendthe first five minutes of her shift performing the - first task, the last five of her shift performing the final task, andall the remaining time sewingat her work table, with occasional breaks to replenish thread. Underthe interpretation of §14(A) adopted bythe district courts, that employee would not be entitled to a seat even while sewing for almost her entire shift, because three of the four employer-defined tasks - required standing or movement. | 27 reasonably could perform their work while seated. As the IWC explained in its 1976 Statement of Findings: The requirementfor “suitable” seats “whe[n] the nature of the work permits” has long been a provision of I.W.C. orders and has proved to be useful and workable as the Division has reasonablyenforced it. Testimony in public hearing madeit clear that some kinds of work places would be covered by the new orders that were not covered by previous orders, and the Commission hasmadeits requirement moreflexible and more subject to administrative judgment as to what is reasonable. Jt continues tofind that humaneconsiderationfor the welfare of employees requires that they be allowed to sit at their work or between operations whenitisfeasiblefor them to do so. RJN Ex.2 at 16 (emphasis added); cf, ER 104, 107% | Evenif there were ambiguities in the text or regulatory history, the clear worker protection purposes of §14 would require a construction that extends its protective ambit to more employees, not fewer. To further the 1” The IWC’s concern with ensuring suitable workstation seating is well supported by medical and public health literature, which demonstrate that prolonged and uninterrupted hoursspentin a standing position can causesignificant health issues (including musculoskeletal disorders, chronic venous insufficiency, preterm birth and spontaneousabortion, and carotid atherosclerosis), as well as foot and lower leg pain and discomfort. See, e.g., Halim & Omar, 4 Review ofHealth Effects Associated With Prolonged Standingin the Industrial Workplaces, 8 Int’! J. Res. & Revs. Applied Sci. 14, 15 (2011); Zanderetal., Influence ofFlooring Conditions on Lower Leg Volume Following Prolonged Standing, 34 Int’] J. Indus. Ergonomics 279, 279-80 (2004). It is well documented that allowing workersto alternate betweensitting and standing promotes workerhealth. See, e.g., Tuchsen,et al., Prolonged Standing at Work and Hospitalisation Due to Varicose Veins: A 12 Year Prospective Study ofthe Danish Population, 62 Occupational Envtl. Med. 847, 849 (2005), available at © http://www.ncbi.nlm.nih.gov/pme/articles/ PMC1740939/ (“standing or walking at work should belimited and alternate[d] with other positions such ‘as sitting”); Halim, 8 Int’l J. Res. & Revs. Applied Sci. at p. 18 (suggesting the use ofa sit-stand stool to alternate between standing and sitting positions). 28 State’s importanthealth and welfare goals, this Court has repeatedly instructed courts to construe the Wage Orders broadly “with an eye to promoting [employee] protection.” Indus. Welfare Comm’n, 27 Cal.3dat 702; see also Martinez v. Combs (2010) 49 Cal.4th 35, 61-62; Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103. The proper construction of §14(A) must “‘promot[e] rather than defeat[]’” the Wage Order’s general purpose of promoting employee health and welfare. Frog _ Creek Partners, 206 Cal.App.4th at 524 (citation omitted); cf’ Wage Order 7-2001 §17 (permitting employers to seek exemptions from the IWC for certain Wage Order requirements that would work “undue hardship,” but only if the requested exemption “would not materially affect the welfare or comfort of employees”). Plaintiffs’ proposed construction furthers the remedial, worker-protection purposes of §14(A)far better than the district courts’ and defendants’ alternative. In short, there is no reason to abandonthe plain meaning of the term “work” in favor of a contrary meaning supported neither by the context, regulatoryhistory, nor purpose of §14. Had the IWC intended the meaning urged by defendants,it could easily have made that intent clear, for example, by drafting §14(A) to provide: “All working employeesshall be provided with suitable seats when the nature of the job as a whole reasonably permits the use of seats” or “when the entire range of assigned duties of employment considered as a whole reasonably permits the use of seats.” The IWCinsteadused the simple term “work,” whose plain meaning is synonymouswith the terms “task,” “duty,” [job] function,” and “assignment.” Because defendants’ proposed interpretation “lacks any textual basis in the [W]age [O]rder,” it must be rejected.” Brinker, 53 Cal.4th at 1038. /// 29 C. Imposing an Arbitrary “Percentage of Tasks” Condition on Employees’ Rights to §14(A) Seating Would Yield Absurd Results When Applied to Real-World Scenarios. Despite the Ninth Circuit’s suggestion in formulating its questionsto this Court, 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. By its plain text, §14(A) requires employers to provide seats whenit is reasonable to permit employeestosit while working, without regard to any particular percentage of time spent on seating-permitted tasks. Thus, evenif this Court were to determine that the “nature of the work” standard requires consideration of an employee’s entire range of assigned tasks (which it should not, for the reasonsstated above), the Wage Orderstill requires an employer to provideseating if the nature of the employee’s range of workis such that the job reasonably permits the use of seats while performing a regular job task at a fixed location at some point during a PAGA-covered pay period. For example,it maynot be reasonable to provide workstation seating to an employee whose work requires herto alternate rapidly among series ofbrief, discrete tasks, only some of which could be performed while seated, if allowing herto sit during those fleeting or ephemeral seating-permitted tasks would yield constant workflow disruptions or physically prevent her from performing her other assigned tasks. But an employee (like plaintiffs here) who could perform mosttasks while seated, and could easily just stand up to perform an intermittent standing-required task, would still be entitled to workstation seating under §14(A) underthis “reasonabl[eness]” standard. The IWCcouldnot haveintendedto limit application ofthe suitable seating law only tothose employees whose majority of assigned tasks reasonably permits the use of seats. Not only is such a construction unsupported bythetext, history, or purpose of the Wage Order, but as 30 illustrated by the following series of examples,it is also entirely illogical in the real world. The Court must avoid anystatutory interpretation that would “‘produce absurd consequerices,”” and therefore defendants’ proposed construction cannotprevail. Bright, 189 Cal.App.4th at 1478 (quoting Flannery v. Prentice (2001) 26 Cal.4th 572, 578). Example 1: Jake is a security guard who works ina commercial building for a private security guard company subject to Wage Order 4- 2001. See 8 CCR §11040(2)(O). During each nine-hourshift, he is assigned to spendthe first four hours watching security video monitorsin a - secure room, and the nextfive hours patrolling the building. If §14(A) were construed to protect only employees whose majority of work time is spent | on stationary tasks, Jake wouldnotbe entitled to a seat while watching video monitors for four hours — a task that can indisputably be performed. while seated. The IWC could not have intended sucha result. Example 2: Sandy works at an amusement park, which is governed by Wage Order 10-2001. See 8 CCR §§11100(2)(A), 11100(14)(A). Her weeks alternate betweenstaffing the ticket booth, where her sole responsibility is to sell tickets for 40 hours a week; and staffing the ring toss booth, where herduties are to collect tickets from customers, hand customersa setofrings, retrieve the tossed rings, and give customers prizes if theywin. Theticket booth window is designed so that an average adult can purchase tickets while standing. Although Sandy can generally perform her ticket booth duties while seated on a high stool, she occasionally must lean over the booth windowto collect money from and hand tickets to youngerchildren customers. If §14(A) were construed to protect only employees whose majority of assigned tasks permit the use of seats, Sandy’s employer would not be required to provide hera seatin the ticket booth, and she would be forced to 31 stand for 40 hours a week in a small, confined space. Likewise, Sandy would be forced to standfor all 40 hours of her workweekif §14(A) were construed to protect only employees whose duties never require them to stand intermittently. Again, the IWC could not have intended such result. Example 3: Two employees work at a bookstore subject to Wage Order 7-2001. See 8 CCR §11070(2)(H). Anna worksat the bookstore two days a week andis always assignedto the customerinformation counter, where hersole responsibilities are to smile and wait for customers to approach with questions, assist customers in locating books by looking up their queries on the computer database, and pagea sales representative if a customer needsassistance physically retrieving a book. Noneof these tasks requires standing or movement. Jorge works at the same bookstorefive days a week. On Mondays and Tuesdays,heis assignedto that same customerinformation counter and performs the same tasks as Anna. On Wednesdays, Thursdays, and Fridays, he is assigned a series of ambulatory tasks, such as re-shelving books, pulling mail-ordered books from the shelves and delivering them to the shipping department, and patrolling the store to assist customers and watch for shoplifters. Evenifthe phrase “nature of the work” were construed to require a numeric counting of an employee’s “entire range of assigned duties,” Anna would be entitled to a seat at the customer information counter under §14(A). Jorge, however, would not — even though he and Annaare similarly situated and perform the identical work for identical amounts of time each pay period — simply because his “entire range of assigned duties” happensalso to include a majority of ambulatory tasks. This unfair and discriminatory application of §14(A) is the inevitable result of the CVS and Chase courts’ — and defendants’ — proposed construction, and cannot be right. Anna and Jorgeare similarly situated for purposesof the seating 32 ‘provision. Consistent with the worker-protection purposes of §14(a), they shouldbe entitled to the same protections. The IWC could not have intended that one be fully protected and the other be completely unprotected, based on what they do whennotstationed at the same customer information counter. As the above examplesillustrate, the IWC could not have intended to require some kind oftime- or task-based assessment of an employee’s “entire range of assigned duties” in determining whether the “nature ofthe work”reasonably permitsthe use of seats. Rather, the IWCclearly communicated a requirement that employers and courts must consider the objective characteristics of the task or tasks being performed to determine whetheror not they reasonably permitthe use ofa seat. Plaintiffs’ construction is the only reasonable construction of §14, and is the only construction consistent with the Wage Order’splaintext, regulatory history, and overarching worker-protection purpose. The “nature of the work” under §14(A) mustrefer to the discrete task or set of tasks being performedat any given time,not an abstract assessmentof an employee’s “entire range of assigned duties”or “job as a whole.” II. QUESTION 2: When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider anyorall of the following: the employer’s — business judgmentas to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee? Neither employer preference nor industry custom and practice — the . very things the labor standards set forth in the Wage Orders were designed to supersede — should be allowed to defeat the remedial, worker-protection purpose of the seating law. Entitlementto a seat under §14(A) must be based on an objective standard of reasonableness, focused on the physical demands, frequency, and duration of an employee’s tasks or duties, viewed 33 in light of the underlying remedial purpose of the seating requirement. Conditioning entitlement to seating on factors such as an employer’s subjective preference (or unsupported “business judgment’) thatits employees stand while working, an employer’s voluntary decision to design a noncompliant workstation, or each individual employee’s unique physical characteristics, would beinconsistent with the text, history, and purpose of the Wage Order, whichcall for an objective analysis of the “nature”ofthe employee’s “work,” not the nature of the employee or the nature of the workstation. | AS Section 14(A) Guarantees Workers a Suitable Seat Based - on an Objective Assessment of the “Nature” of The Work, Not on an Employer’s Subjective Preference. . Any deference to an employer’s unsupported “business judgment”is contrary to the plain meaning and purpose of the Wage Order, whichdictate that employers “shall” provide employees with suitable seats when the “nature” of the work permits, based on an objective standard of reasonableness,not on the subjective preferences of the employer. The Legislature has specifically stated that the word “shall” must be construed as mandatory for purposes of Labor Code enforcement. See Labor Code §15 (“‘Shall’ is mandatory and ‘may’ is permissive.”). Thus, an employer’s subjective “business judgment” cannotoverride a standard condition of labor mandated bythe seating law. To allow an employer’s subjective business judgment to define the “nature of the work”and whether such work “reasonably permits the use of seats” would be to make each employerits ownlegislature, empowered to determine whetherto be bound by §14(A)or not. Section 14(A) wouldloseall force, for every employer could evade the mandatory seating requirement by asserting its “business judgment”that its employees’ jobs require them to standatall times, as CVS and Chase have done here. See ER9 (trial court accepting 34 CVS’s rationale that “if CVS hires employees to stand while working a cash register ... those employees would not be performingtheir job ifthey were seated”). Even an office receptionist would obtain no protection from §14(A) if her employer chose to define hertasks as “answering the telephone while standing,” “greeting visitors while standing,” and “using a computer while standing.” The Court cannot adopta construction that would legitimize such brazen circumvention of the law. The plain meaning ofthe terms “nature of the work” and “reasonably permit” also preclude consideration of an employer’s business judgment in determining whetherthe nature of an employee’s work reasonably permits theuse of seats. The Merriam-Webster Collegiate Dictionary (11th ed. 2003) defines “nature”as “the inherent characteror basic constitution ofa . .. thing: essence.” An employer’s “business judgment” does not inform the “inherent character” of a cashier’s or teller’s work; and nowherein the seating provisionis there any specific mention of an employer’s “business judgment.” While companieslike CVS and Chase maybelieve that their customers prefer a standing cashierorteller, nothing about the “nature” of cashier orteller work requires standing. Cashiers and tellers can greet customers with the samefriendly smile and warm welcome whether seated or standing.” Likewise, the term “reasonably permits” underscores the objective nature of the required inquiry, as “reasonableness”is inherently an objective standard. Cf People v. Conway (1994) 25 Cal.App.4th 385, 388 (“reasonable suspicion” standard for investigative stops “is measured by an objective standard”); Rossi v. Motion Picture Ass'n (9th Cir. 2004) 391 F.3d 1000, 1004 (noting well-established distinction between “objective 1” Tellingly, neither defendant was able to cite any evidentiary basis for its “belief” that standing cashiers ortellers provide better customer service than do seated employees. 35 reasonableness standard” and “subjective good faith standard”); Brooks v. Vill. ofRidgefield Park (3d Cir. 1999) 185 F.3d 130, 137 (reasonableness requirement “imposes an objective standard by whichto judge the employer’s conduct”). Deferring to an employer’s subjective preference for standing employeesis fundamentally incompatible with the objective inquiry required under §14(A). It has been clear from the earliest version of the suitable seats provision that whether the nature of an employee’s work reasonably permits the useofseats is a judgment to be made by the IWC(orthe courts), not by the self-interested employer. Afterall, in every case that alleges a violation of §14(A), the employee is challenging an employer’s judgmentnot to provideseating to its employees. If deference to that judgment were required, no violation of §14(A) could ever be found. In its earliest versions, the suitable seating requirement explicitly stated that the relevant judgment was that of the IWC,not the employer. The 1919 Wage Order languagestated that seats shall be provided “[a]s far as, and to whateverextent, in. thejudgmentofthe Commission,the nature of the work permits.” ER 52, 75 (emphasis added). Evenafter the explicit phrase “in the judgment of the Commission” was removed in 1947 (presumably as unnecessary), the [WCstated clearly in its 1976 Statement of Findings: [T]he Commission has madeits requirement more flexible and more subject to administrativejudgment as to whatis reasonable. It continues to find that humaneconsideration for the welfare of employees requires that they be allowedto sit at their work or between operations whenit is feasible for them to do so. RJN Ex.2 at 16 (emphasis added). That Statement confirms that the [WC did not intend to transfer ultimate authority from the Commission(or the DLSEorthe courts) to the employer to determine whetherthe nature of an employee’s work permits seating or not. 36 Several decisions of this Court highlight the adverse impact on workplace rights that wouldresult from relying on an employer’s own job descriptions to determine the applicability of Labor Code protections. For example, this Court has madeclear that courts should not defer to an | employer’s decisionto classify an employee as exempt from overtime protection as an outside salesperson or as an exempt manager. Instead, courts must independently evaluate the actual job duties performed by those employees to determine how they spend their work days. See, e.g., Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 801-02. After all, “if hours workedon sales were determined through an employer’s job description, | then the employer could make an employee exempt from overtime laws solely by fashioning an idealized job description that had little basis in reality.” Id. at 802. Likewise here, underthedistrict courts’ approach, an employer could exemptitself from the requirements of §14(A) by simply redefining the scope of an employee’s official job description to include tasks that, in the employer’s “business judgment,” require standing. That cannot be what the IWC intended whenit drafted the mandatory suitable seating provision. An employer’s subjective preference for having its employees stand merits no weightin determining whether the nature of an employee’s work reasonably permits the use of seats. Instead, this determination-must be made based onthe objective physical requirementsof the task or set of tasks for which seating is sought, viewed in light of the underlying remedial purpose of the IWC’s mandatory seating law. B. Section 14(A) Establishes a Mandatory Condition of Labor With Which Employers Must Comply, Evenif Doing So Requires Modification of Existing Workstations. The sametextual and historical reasons why an employer’s business judgment cannotdictate when workstation seating is required apply with 37° equal force with respect to an employer’s choice of workstation. Just as an employer cannot evade the requirements of the mandatory seating law simply byasserting its “business judgment”that the work requires employees to stand, nor can an employer evade §14(A) simply by pointing to an existing workstation design that will not accommodate a seat absent modifications to the workstation. An employer’s choice of a workstation design that does not accommodate a seat maybeasarbitrary as an employer’s choice to have its employees stand while performing tasks that reasonably could be performed successfully while seated. To condition employees’ entitlementto a suitable seat on the employer’s decision to design a noncompliant workstation would, again, turn the worker-protection purpose of the Wage Orderonits head. | That an employer would incur economic hardship if required to modify an existing workstation in order to accommodate a seat is no excuse for failing to provide the required seating. An employerwill likely incur compliancecosts anytimeit violates a standard condition oflaborset forth in the Labor Code or Wage Orders. For example, §3(A) of Wage Order4- 2001 requires employers to pay employees overtime premiumsfor all hours worked overeight or twelve hours in a single day. If an employer refused to pay its workers these premiums, it would be no excuse that compliance with the overtime law would cost the employer money. Section 9 of Wage Order 4-2001 requires employers to provide and maintain uniforms wheneversuch uniformsare required to be worn as a condition of employment. If an employer refused to pay for such required uniforms and | instead forced employeesto pay out of their own pockets, it would be no excuse that providing the uniforms would cost the employer money. Section 15(C) of Wage Order 4-2001 requires employers to maintain a temperatureofnot less than 68 degrees in employees’ restrooms and 38 changing rooms during hours of use. If an employerinstalled a heating system that only warmedupto 60 degrees,again, it would be no excusethat upgrading the heating system to comply with the temperature law would - cost the employer money. Compliance with the mandatory seating provisions of Section 14 should be no different. Whatever modifications to existing workstations might be required for an employer to comply with its legal obligationsis irrelevant to whether the “nature of the work reasonably permits the use of seats.” An employer’s costs of compliance havenoplace in construing §14(A). | This is particularly so given that the mandatory workstation seating requirement has been the law in California law for more than 90 years. The original 1919 wage order provision stated that “[w]ork tables, including sorting belts, shall be of such dimensions and design that there are nd physical impediments to efficient work in either a sitting or standing position.” ER 52, 75. Although that specific provision no longer exists,at no point did the IWCreplaceit with language authorizing employers to design noncompliant workstationsor to justify noncompliance based on ignorance of the law. Employers today cannot claim that they were without notice of this mandatory seating requirement when they designed or purchasedtheir stores or employee workstations. Whatever mightbe the financial costs of complying with these requirements, those concernsare properly addressed to the California Legislature, not the courts. 12’ At most, the issues raised by defendants about workplace | reconfiguration bear on the potential amount of PAGApenalties, not on whether plaintiffs can establish an underlying violation of the mandatory seating law. PAGAincludesa “safety valve” provision, Labor Code §2699(e)(2), that allows the trial court to reduce a defendant’s PAGA penalties from “the maximum civil penalty amount”if “based on the facts (continued...) 39 Moreover, the Wage Orders already provide a safety valve for employers who claim that compliance with particular provisions, such as the seating law, “would work an undue hardship on the employer,” allowing them to seek an administrative exemption. See, e.g., Wage Order 7-2001 §17 (establishing a multi-part administrative procedure for employers seeking an exemption from the seating law). As further testamentto the strong worker comfort and welfare purposes of the Wage Orders, however, an exemption may be granted only upon an employer’s showing (and the Division’s finding,“after due investigation”) both that compliance with the seating law “would work an undue hardship on the employer” and that the requested exemption “would not materially affect the welfare or comfort of employees.” Wage Order 7-2001 §17./ This administrative exemption standard would be rendered superfluous if an employer could bypass the procedure and escapeliability simply by asserting economic hardship. In short, the existing physical configuration of an employee’s workspace should have no bearing on whetherthe nature of the employee’s work reasonably permits the useofseats.- /// /// /// 2! (...continued) and circumstancesofthe particular case, to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory.” This is a heavy burden, but if an employer couldestablish that the costs of reconfiguration were so high asto be “confiscatory,” having to pay full PAGApenalties on top ofthose costs of reconfiguration might be a sufficient basis for seeking a discretionary reduction of the applicable PAGApenalty. 13’ Tn the cases pending before the Ninth Circuit, neither CVS nor Chase sought an exemption from the DLSE. 40 C. Section 14(A) Establishes a Standard Condition of Labor For All Employees, Regardless of Their Physical Characteristics. There is no rational basis for conditioning an employee’s entitlement to a seat under §14(A) on that employee’s height, weight, or other physical characteristics. The Wage Orders establish mandatory, standard conditions of labor forall covered employees working in the regulated industries. Section 14(A) makesthe universal scope of its mandateclear in plain, unmistakable terms, providing that “‘A// working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” (Emphases added). Moreover, the Wage Order entitles workers to the use ofa suitable seat when the “nature of the work” reasonably permits such use. Whether the “nature of the work” “reasonably permits” the use of seats does not varywith the height or weightof the individual employee performing the work. The IWC could not have intended its mandatory seating, whose purposeis to establish a minimum standard condition of labor for the comfort and welfare of a// employees, to apply to different employees in a discriminatory fashion based ontheir physiological traits. For all of the above reasons, §14(A) cannot, consistent with its text, history, or purpose, be construed as permitting consideration of an employer’s “business judgment,” the design of an existing noncompliant workstation, or an employee’s individual physiological characteristics, in determining whetheror not the nature of an employee’s work reasonably permits the use of seats. Instead, the text, history, and purpose of the Wage Orders instruct that determining whether the “nature” of an employee’s work“reasonably” permits the use of seats must be guided by an objective inquiry into the inherent physical requirements of the employee’s taskorset, Al of tasks for which seating is sought, viewedin light of the underlying remedial purpose of the [WC’s mandatory seating law. III. QUESTION3: If an employerhas not providedanyseat, does a plaintiff need to prove what would constitute “suitable seats” to show the employerhas violated §14(A)? An 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). Thus, once employees establish that 1) the nature of the work reasonably permits the use of seats, and 2) the employer failed to provide them any seating to use while performing such work,the employer’s primafacie liability is established, without any further showing required of what might constitute a “suitable” seat underthe particular circumstances. Defendants, and the district courts in these two cases, would place the burden on employees to identify and prove what constitutes a “suitable seat” before imposingliability on an employer whofailed to provide any seat. In effect, defendants seek to condition an employer’s obligation to provide suitable seating on an employee’s requestnot only for a seat, but for a particularseat that qualifies as “suitable.” Assigning such burdento the employeesis not only logically unsound, but contrary to the plain text and purpose of the Wage Order. Asan initial matter of commonsenseandlogic, it would be. impracticable to impose on employeesthe burdenof identifying a “suitable seat.” The employer, not the employee, has the information and resources to identify a seat that qualifies as “suitable” for the nature of the work being performed. | This commonsense allocation of burdensis reflected in the plain text of the Wage Orders, which regulate employers and establish standard conditions of labor that employers must provideto protect their employees’ 42 health, comfort, and welfare. The seating law provision, for example, instructs in unmistakably mandatory termsthat “[a]ll working employees shall be provided with suitable seats .. ..” (Emphasis added). Byits plain terms, the seating law imposes a burden on employers to make suitable seats available to employees, not on employees to request a seat.’ To hold ‘otherwise wouldinject into the unqualified mandatory languageof the Wage Order a condition the [WC never included and never gave any indication of intending, either in the current version of §14 or any ofits previous, equally mandatory versions, dating back to 1919. See Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 381 (“In construing the statutory provisions a court is not authorized to insert qualifying provisions not included”) (quoting Peoplev. One 1940 Ford V-8 Coupe (1950) 36 Cal.2d 471, 475), superseded by statute on other grounds; accord Doe v. City ofLos Angeles(2007) 42 Cal.4th 531, 545 (“{Tn construing this, or any statute, we may not broadenor narrow the scope of the provision by readinginto it language that does not appear in it or reading outofit language that does.”); In re Hoddinott (1996) 12 Cal.4th 992, 1002 (same). Nowhere does the Wage Orderstate that “provide” means “make available only upon request.” Nor would such a construction be consistent with the plain language of §14(A). Thesuitable seating law provides: “All working employeesshall be provided with suitable seats when the natureofthe workreasonably permits 1” A standard that requires employers to provide employees with suitable seating does not, of course, mean that employees must remain seated atall times, or even that employees mustuse the available seats at all. Employees whohave suitable seating available may choose whento sit and whento stand, even if their work could be accomplished while seated. An employee’s freedom todecline a workplace accommodation, however, does not obviate the employer’s legal duty to provide the accommodation in the first place. 43 the use of seats.” That same language could be inverted, without any change in meaning,to state: “Whenthe nature of the work reasonably permits the useofseats, all working employees shall be provided with suitable seats.” That inversion highlights that the sole condition an employee mustmeetto be entitled to a “suitable seat” is a showing that the nature of their work reasonably permits“the use of seats.” Theseating law does not impose on employees the burden to request | a seat, muchless to request a particular seat that is suitable. To prevail on a §14(A) seating claim, employees who have been provided noseat whatsoever need only establish that the nature of their work reasonably permits “the use of seats,” nothing more. Bydefinition, an employer that hasfailed to provide any seating to its employees hasfailed to provide suitable seating. CONCLUSION For the foregoing reasons, the Court should answerthe Ninth Circuit’s certified questions as follows: 1. As used in the context of §14, the phrase “nature of the work” . refers not to the entire range of assigned duties that may arise in the course of employment, butto the discrete task or set of tasks an employee performs at any given time during the work day. i la. The phrase “nature of the work” should not be construedto refer to the entire range of assigned duties; but evenif it were so construed, — §14(A) prescribes no specific threshold amountoftime, or percentage of time, that mustbe spent on tasks that reasonably permit the useof seats. If morethan half of an employee’s time is spent performing tasks that reasonably permit the use of a seat, §14(A) entitles that employee to a suitable seat whenever engagedin thoseparticular tasks, regardless of whether the remainder of the employee’s timeis spent on tasks that require 44 standing; but employees who spend a minority of their work time on such tasks are also entitled to a suitable seat under §14(A), so long as the reasonableness element is Satisfied. | 2. Entitlement to a seat under §14(A) must be based on an objective standard of reasonableness, focused on the physical demands, frequency, and duration ofthe task or set of tasks at issue, viewed in light of the underlying remedial purpose ofthe seating requirement, not on arbitrary factors such as an employer’s subjective preference (or unsupported “business judgment”) that employees.stand while working, the design of a noncompliant workstation, or each individual employee’s unique physical characteristics. 3. Once employeesestablish that 1) the nature of the work reasonably permits the use of seats, and 2) the employer failed to provide them anyseating to use while performing such work,the employer’s prima facie liability is established as a matter of law, without any further showing of what might possibly constitute a “suitable” seat under the particular circumstances. For the reasons stated, this Court should construe §14(A) ofWage ' Order 4-2001 and Wage Order 7-2001 as imposing a requirement on employers to provide suitable seating to “all” covered employees, during the periods of time (“when”) those employees are engaged in worktasks whose inherent characteristics, such as physical demands, duration, and frequency (“nature of the work”), are such that the employees objectively ~ could perform thosetasks while seated (“reasonably permits the use of seats”). The Court should further hold that §14(A) imposes an affirmative obligation on the employerto provide a “suitable” seat, not on the employee to identify and request such a seat. 45 Dated: April 11, 2014 Respectfully submitted, Michael Rubin Connie K. Chan ALTSHULER BERZON LLP ~ James F. Clapp James T. Hannink Zach P. Dostart DOSTART CLAPP & COVENEY, LLP Kevin J. McInerney Matthew Righetti RIGHETTI GLUGOSKI, PC Vike Labr_Lepe Michael Rubin Attorneys for Petitioners 46 CERTIFICATE OF WORD COUNT Pursuantto Rule 8.520(c) of the California Rules of Court, I certify that the foregoing Petitioners’ Opening Brief was produced on a computer in 13-point type. The word count, including footnotes, as calculated by the wordprocessing program used to generate the brief is 13,986. Dated: April 11, 2014 Michael Rubin Attorneys for Petitioners 47 PROOF OF SERVICE Code of Civil Procedure §1013 CASE: Kilby v. CVS Pharmacy,Inc. Henderson,et al. v. JPMorgan Chase Bank, N.A. CASE NO: California Supreme Court #8215614, U.S. Court of Appeals, 9th Cir., Nos. 12-56130, 13-56095 I am employed in the City and County of San Francisco, California. I am overthe age of eighteen years and not a party to the within action; my business address is 177 Post Street, Suite 300, San Francisco, California 94108. On April 11, 2014, I served the following document(s): Petitioners’ Opening Brief on the parties, through their attorneys of record, by placing true copies thereof in sealed envelopes addressed as shown below for service as designated below: By First Class Mail: Iplaced the envelope, sealed and withfirst-class postage fully prepaid, for collection and mailing following our ordinary business practices. I am readily familiar with the practice of Altshuler Berzon LLPfor the collection and processing of correspondence for mailing with the United States Postal Service. On the same daythat correspondenceis placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Mail Postal Service in San Francisco, California, for collection and mailing to the office of the addressee on the date shown herein. © ADDRESSEE PARTY Timothy Joseph Long Defendant-Appellant CVS Orrick Herringtonet al Pharmacy 400 Capitol Mall #3000 Sacramento, CA 95814-4407 Michael David Weil : Defendant-Appellant CVS Orrick Herrington & Sutcliffe LLP Pharmacy 405 Howard Street The Orrick Building San Francisco, CA 94105-2669 48 Kevin J. McInerney 18124 Wedge Parkway, Suite 503 Reno, NV 89511 James F, Clapp James T. Hannink Zach P. Dostart Dostart Clapp & Coveney, LLP 4370 La Jolla Village Drive, Suite 970 San Diego, CA 92122-1253 Matthew Righetti Righetti Glugoski, PC 456 Montgomery Street, Suite 1400 San Francisco, CA 94104 Mark A Ozzello, Esq. Arias Ozzello & Gignac LLP 6701 Center Drive West, Suite 1400 Los Angeles, CA 90045-1558 Raul Perez, Esq. Capstone Law APC 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Carrie A. Gonell John A. Hayashi Morgan, Lewis & Bockius LLP 5 Park Plaza, Suite 1750 Irvine, CA 92614 Samuel S. Shaulson 101 Park Avenue New York, NY 10178-0060 49 Plaintiff-Appellant Nykeya Kilby; and Plaintiffs-Appellants Henderson and Lampkins in 9th Cir. case no. 13-56095 Plaintiff-Appellant Nykeya Kilby Plaintiff-Appellant Nykeya Kilby Plaintiff-Appellant Dalton in 9th Cir. Case #13-56095 Plaintiff-Appellant Salazar in 9th Cir. Case #13-56095 Defendant-Appellee JPMorgan Chase Bank, N.A. in 9th Cir. Case #13-56095 Defendant-Appellee JPMorgan Chase Bank, N.A. in 9th Cir. Case #13-56095 Molly Dwyer, Clerk of the Court Office of the Clerk U.S. Court of Appeals for the Ninth Circuit 95 Seventh Street P.O. Box 193939 San Francisco, CA 94119-3939 Barbara A. Jones AARP Foundation Litigation 200 S. Los Robles, Suite 400 Pasadena, CA 91101 Melvin Radowitz AARP 601 E Street, NW Washington, D.C. 20049 Robin G. Workman Qualls & Workman 177 Post Street, Suite 900 San Francisco, CA 94108 Arif Virji Lynch, Gilardi & Grummer 170 Columbus Ave., 5th Floor San Francisco, CA 94133 U.S. Court of Appeals for the Ninth Circuit Amicus AARP Amicus AARP ‘Amicus class certified in ‘McCormack v. 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 ofthe State of California that the foregoing is true and correct. Executed this April 11, 2014, at San Francisco, California. . 4 ph Jean Perley 50
