Employment Litigation · Primary-source case analysis

Kilby: California’s Suitable-Seating Rule Turns on Location-Specific Work

By Aneeta Mishra and Timothy Chan

Published September 13, 2026

Kilby v. CVS Pharmacy, Inc. answered certified questions about California wage orders requiring suitable seats when the nature of the work reasonably permits their use.

The Court rejected an all-or-nothing view of the job

The employer urged consideration of every duty across the entire shift, while employees urged a task-by-task test. The Court rejected both extremes because either could obscure how work is actually performed at a particular station.

Tasks are grouped by the location where they occur

The relevant inquiry considers the actual or reasonably expected tasks performed at a discrete location, including their frequency, duration, and relationship. An employee may be entitled to a seat at one workstation even though other duties elsewhere require standing.

Reasonableness depends on the total circumstances

The analysis is objective and qualitative. Employer business judgment, customer-service duties, workspace layout, transitions between sitting and standing, and effects on the quality and effectiveness of work may be relevant, but an employer’s mere preference for standing is not controlling.

The employer bears the unavailability burden

Once the work reasonably permits sitting, the wage order says employees shall be provided suitable seats. An employer seeking an excuse because no suitable seat exists bears the burden of proving that seating is unavailable or infeasible.

Key takeaways

• Evaluate actual tasks by workstation or other discrete location.
• Document duration, frequency, transitions, and any operational effect of seated work.
• Treat business judgment and physical layout as relevant evidence, not automatic defenses.
• Do not shift to the employee the burden of identifying a specific suitable seat.