Ninth Circuit Extends First Amendment Protection for Public Employees

By Dennis Law and Kathryn Eppright

Another front in the wage and hour wars in California opened several years ago when companies, like Home Depot and the 99 Cent Only stores, were named in class actions brought by employees alleging that the companies had failed to provide the “suitable seating” required under section 14 of CA Wage Order 7-2001 and CA Wage order 4-2001. While the issue in those state court cases focused on the standing of the plaintiffs to sue for non-compliance with the Wage Orders, the interpretation of the legal standards imposed by the Wage Orders moved to the federal courts. No California court has addressed the question of how to determine if “suitable seating” is required or not. Thus, not surprisingly, when the Ninth Circuit was asked recently in two class actions, Nykeya Kilby v. CVS Pharmacy, Inc., and Kemah Henderson v. JPMorgan Chase Bank (collectively referred to herein as “Kilby”) to determine if the defendant companies were required to provide seating to the plaintiffs and other employees in similar jobs, the panel deferred to the California Supreme Court, utilizing the rarely invoked California Rule of Court 8.548 to certify three key questions for the state high court to answer. How the California Supreme Court answers those questions will likely have a significant impact on the direction these types of wage and hour cases take in the future.

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