Articles from April 2016

Kilby v. CVS: Cal. Supreme Court Clarifies Seating Requirements

On April 4, 2016, the California Supreme Court answered three questions certified by the United States Court of Appeals for the Ninth Circuit regarding interpretation of the California wage order requirements for the provision of seating to employees (previously covered on the ILJ here). This opinion arose from two federal court class actions on the issue, one against CVS Pharmacy and the other against Chase Bank. See Kilby v. CVS Pharmacy, Inc., No. S215614 (Cal. April 4, 2016) (slip op. available here). The much-anticipated clarification is welcomed by plaintiffs’ attorneys following a dearth of authority as to how to evaluate claims based on an employer’s failure to provide adequate seating.

The three questions certified to the California Supreme Court were:

  1. Does the phrase “nature of the work” [under Wage Order Nos. 4-2001 and 7-2001, § 14(A)] refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?
  2. When determining whether the nature of the work “reasonably permits” use of a seat [as used in Wage Order Nos. 4-2001 and 7-2001, § 14(A)], what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
  3. If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?


Slip op. at 1. First, the court rejected the employers’ argument that the work in question should be evaluated based on a “holistic” consideration of all of an employee’s job duties during an entire shift, which would require a weighing of all of an employee’s “standing” tasks against all of the “sitting” tasks, and then classifying a job as either a “sitting” or “standing” job. It also rejected the employees’ argument that the work in question should be evaluated separately for each individual task that the employee might perform. Rather, the court referenced legislative history and the California Division of Labor Standards Enforcement—which had submitted an amicus brief—to hold that the “nature of the work” under the wage order should be examined as to each of the subsets of tasks that an employee would perform or would be expected to perform in a particular location within their workplace (out of the total tasks and duties performed during a shift), “such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.” Id. at 16. In other words, seating might be required while attending to certain work tasks (grouped by their location) but not others, even for the same employee.

Second, the court held that whether work “reasonably permits” use of a seat should depend on the totality of circumstances, including both whether tasks can be performed while seated, as well as whether seating would be feasible, with no single factor being determinative. In doing so, the court preserved a role for the employer’s “business judgment” (such as to the efficacy of providing customer service when seated versus standing) and the physical layout of the workplace among the factors to be considered. Slip op. at 20-23. However, the court rejected consideration of the physical differences among employees as a relevant factor, because “the provision requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does.” Id. at 24.

Lastly, because the wage order “unambiguously states employees ‘shall be provided with suitable seats,’” the court held that any claim that “compliance is infeasible because no suitable seating exists” would be the employer’s burden to prove. Slip op. at 25.

Kilby appears to be a boon for plaintiffs seeking to certify seating claims, because the evaluation now focuses more on objective inquiries common to groups of employees. Further, plaintiffs no longer need to prove that seating could have feasibly been provided, often an awkward and time-consuming exercise. With this much-needed clarification of the law regarding seating claims, California employees can be expected to bring and seek to certify an increasing number of seating actions. 

Authored by: 
Jonathan Lee, Associate

Long v. Provide Commerce: Arbitration Clause in Browsewrap Agreement Held Unenforceable

A California Court of Appeal affirmed an order issued by Judge Jane Johnson denying a motion to compel arbitration where the arbitration agreement was contained in an online “browsewrap” agreement. Long v. Provide Commerce, Inc., No. B257910, 2016 WL 1056555 (March 17, 2016) (slip op. available here). The plaintiff had purchased flowers through, a website operated by the defendant. In his putative consumer class action lawsuit, the plaintiff alleged that, despite being advertised as a completed, assembled product, the flowers were delivered in a “do-it yourself kit requiring assembly.” Slip op. at 3. The defendant moved to compel arbitration based on an arbitration clause in the website’s Terms of Use.

In Long, the Terms of Use were available via a hyperlink at the bottom of each page on the website—what is known in e-commerce as a browsewrap agreement. A browsewrap agreement does not require any express manifestation of agreement to the Terms of Use; rather, the user agrees to the Terms simply by using the website. Slip op. at 7. This is in contrast to a “clickwrap” agreement, where the consumer must click on a checkbox indicating his assent to be bound by the Terms of Use in order to continue using the website. Id. As there was no dispute that the plaintiff had no “actual knowledge” of the Terms of Use when he made his online purchase, the court analyzed the design and placement of both the hyperlink and the website to determine whether they were “sufficient to put a reasonably prudent Internet consumer on inquiry notice of the browsewrap agreement’s existence and contents.” Id. at 8.

The question of “what sort of website design elements would be necessary or sufficient to deem a browsewrap agreement valid in the absence of actual notice” was an issue of first impression in California. Slip op. at 9. While the hyperlink to the Terms of Use appeared on every page of the website and was visible without scrolling down, the hyperlink was nonetheless deemed too inconspicuous to provide the plaintiff with inquiry notice. Id. at 12-13. First, the hyperlink was light green-colored on a lime green background, and thus could blend in. Id. at 13. Additionally, there was nothing on the website to notify the consumer that, in using the website to buy flowers, “he should also be on the lookout for a reference to ‘Terms of Use’ [elsewhere] on the website[].” Id. at 12. Also, when a consumer selected his purchase and proceeded to checkout, the hyperlinks were not, contrary to the defendant’s characterization, “located next to” the form fields that a consumer would fill out to complete his order. Rather, there were several layers of other text and images that a consumer would need to look past to find the Terms. Furthermore, the inclusion of the Terms of Use hyperlink in a confirmation email did not remedy the problem; in the email, the Terms of Use hyperlink appears in inconspicuous grey font on a white background and was “located on a submerged page,” forcing the recipient to scroll down past layers of information, advertisements, logos, and other hyperlinks. Id. at 13.

The opinion expressly focused on the “practical reality” of how a consumer would interact with the website and the confirmation email. Slip op. at 13. Although it did not need to decide this issue, the court opined that, even if the hyperlink had been displayed conspicuously on the website, “without notifying consumers that the linked page contains binding contractual terms, the phrase ‘terms of use’ may have no meaning or a different meaning to a large segment of the Internet-using public.” Id. The court thus “advised” online retailers to include a conspicuous textual notice rather than just a hyperlink. Id. at 12-13 (agreeing with Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171 (9th Cir. 2014)). Finally, the Court of Appeal also held that, as the plaintiff was not bound by the Terms of Use browsewrap agreement, the plaintiff also was not bound by the forum selection clause included therein. Id. at 14-15.

Authored By:
Katherine Kehr, Senior Counsel