Category Archives: Civil Litigation Cases

On November 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) reported a settlement regarding a food services employee on disability leave for a job injury at Safeway Grocery.

Initially Safeway followed the law, Americans with Disabilities (ADA), which requires employers to reasonably accommodate employees with a disability; as such Safeway allowed the employee to work in a different position that did not require heavy lifting as she did in her previous assignment. However, Safeway unilaterally decided to place the employee on unpaid leave indefinitely, making the argument that the employee had exceeded what they deemed an allowable time lime and, therefore, could no longer enjoy the position with modified duty.

The Federal Disability Lawsuit was settled by Safeway because of a legal discrimination claim brought against it. The requirement of reasonable accommodation includes, but is not limited to, the employer reassigning an employee with a disability to another position, unless it can be established this would cause a significant expense to the employer and/or substantial difficulties associated with the same. There is no time limit provided the employee has a qualifying disability.

For additional information on employee related issues, you are invited to view our web site at www.spitalaw.com

In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?