Nykeya Kilby v. CVS Pharmacy, Inc.

Filing

Filed Order Certifying the Question to the State Supreme Court of California (BARRY G. SILVERMAN, CONSUELO M. CALLAHAN and N. RANDY SMITH) These cases are withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within seven days after the Court accepts or rejects certification, and again within seven days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED. . [8920528] [12-56130, 13-56095]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NYKEYA KILBY, individually and on
behalf of all others similarly
situated,
Plaintiff-Appellant,

No. 12-56130
D.C. No.
3:09-cv-02051MMA-KSC

v.
CVS PHARMACY, INC.,
Defendant-Appellee.
KEMAH HENDERSON, individually
and on behalf of all others similarly
situated; TAQUONNA LAMPKINS,
individually and on behalf of all
others similarly situated; CAROLYN
SALAZAR, individually and on behalf
of all others similarly situated,
Plaintiffs-Appellants,

No. 13-56095
D.C. No.
2:11-cv-03428PSG-PLA

ORDER

v.
JPMORGAN CHASE BANK NA,
Defendant-Appellee.
Filed December 31, 2013
Before: Barry G. Silverman, Consuelo M. Callahan,
and N. Randy Smith, Circuit Judges.

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KILBY V. CVS
SUMMARY*

Certification to California Supreme Court
The panel certified questions to the California Supreme
Court concerning the proper interpretation of Section 14 in
California Wage Order 4-2001 and California Wage Order 72001.
The panel certified the following questions to the
California Supreme Court regarding Section 14(A) of
California Wage Order 4-2001 and California Wage Order 72001:
1. Does the 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 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?
2. When determining whether the nature of the work
“reasonably permits” the use of a seat, should
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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courts consider any or all 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 employer has not provided any seat, does a
plaintiff need to prove what could constitute
“suitable seats” to show the employer has violated
Section 14(A)?

ORDER
These cases require us to decide, as a matter of California
law, the proper interpretation of Section 14 in California
Wage Order 4-2001 and California Wage Order 7-2001.1
Both sections address the circumstances under which an
employer has an obligation to provide an employee with a
seat. We respectfully request that the California Supreme
Court exercise its discretion to decide the certified questions
set forth below.
I. Questions Certified
The applicable Wage Orders require that an employer
provide “suitable seats” to employees “when the nature of the
work reasonably permits the use of seats.” IWC Wage Order

1
The language of Section 14 is identical in both Wage Orders. Wage
Order 4-2001 covers professional, technical, clerical, mechanical, and
similar occupations and is codified at California Code of Regulations,
Title 8, Section 11040. Wage Order 7-2001 covers the mercantile industry
and is codified at California Code of Regulations, Title 8, Section 11070.

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4-2001 § 14(A); IWC Wage Order 7-2001 § 14(A). Pursuant
to Rule 8.548 of the California Rules of Court, we request
that the California Supreme Court answer the following
questions regarding Section 14(A) of these Wage Orders:
1. Does the 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 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?
2. When determining whether the nature of the work
“reasonably permits” the use of a seat, should
courts consider any or all 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 employer has not provided any seat, does a
plaintiff need to prove what would constitute
“suitable seats” to show the employer has violated
Section 14(A)?
The California Supreme Court shall not be bound by our
phrasing of the questions. Cal. R. Ct. 8.548(f)(5). We agree

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KILBY V. CVS
to accept and follow the court’s decision.
8.548(b)(2).

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Cal. R. Ct.

II. Statement of Facts
Kilby v. CVS Pharmacy, Inc., Case No. 12-56130
Nykeya Kilby (“Kilby”) worked for CVS Pharmacy, Inc.
(“CVS”) as a Clerk/Cashier for an eight-month period in
2008. Her primary responsibility was to operate a cash
register at the front of the store. This responsibility included
scanning merchandise, bagging merchandise, and processing
customer payments. Kilby spent about ninety percent of her
time operating the cash register. The rest of the time she
performed tasks that required her to move around the store,
such as gathering shopping carts and restocking display cases.
CVS informed Kilby during her training that she would
be expected to stand for long periods of time. CVS has a
policy of not providing seats to Clerk/Cashiers because, in
CVS’s judgment, standing while operating the cash register
promotes excellent customer service. Pursuant to this policy,
CVS did not furnish Kilby with a seat while she operated the
cash register.
Kilby brought a putative class action in the U.S. District
Court for the Southern District of California on behalf of
current and former employees of CVS who held the position
of Clerk/Cashier. Kilby alleged a violation of California
Wage Order 7-2001 Section 14(A). The district court found
that the “‘nature of the work’ performed by an employee must
be considered in light of that individual’s entire range of
assigned duties” and that “courts should consider an
employer’s ‘business judgment’ when attempting to discern

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the nature of an employee’s work.” Using this interpretation
of Section 14, the district court denied class certification
because the duties of Clerk/Cashiers are inconsistent from
day to day, from shift to shift, and from employee to
employee. The district court also granted summary judgment
to CVS, because many of Kilby’s duties required her to stand,
CVS expects its Clerk/Cashiers to stand, and CVS informed
Kilby of that expectation.
Henderson v. JPMorgan Chase Bank, Case No. 13-56095
Kemah Henderson, Taquonna Lampkins, Carolyn Salazar,
and Tamanna Dalton (together “Henderson”), all former
tellers employed by JPMorgan Chase Bank (“JPMorgan”),
brought a putative class action on behalf of current and
former tellers of JPMorgan. Henderson alleged a violation of
California Wage Order 4-2001 Section 14(A). Pursuant to its
company policy, JPMorgan does not provide its tellers with
seats.
All tellers spend a majority of their time at their teller
station accepting deposits, cashing checks, and handling
withdrawals. Tellers may also have additional duties, such as
escorting customers to safety deposit boxes, working the
drive-up teller window, or checking if ATMs are working
properly. In addition, some of JPMorgan’s banks have
physical differences in their layouts. The district court denied
class certification, because it interpreted Section 14 to mean
that the nature of a teller’s work could change based on the
tasks the teller performs while away from the teller station,
the bank at which the teller works, and which shift the teller
works.

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III.

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Explanation of Certification

This request satisfies the requirements of Rule 8.548(a) of
the California Rules of Court, because there is no controlling
California precedent explaining how Section 14 of California
Wage Order 4-2001 and Wage Order 7-2001 should be
interpreted, and this question will determine the issues on
appeal in these cases. The ambiguity of Section 14 and the
consequences of its meaning to the citizens of California lead
us to conclude that its interpretation should be left to the
California Supreme Court.
Section 14(A) requires that “[a]ll working employees
shall be provided with suitable seats when the nature of the
work reasonably permits the use of seats.” IWC Wage Order
4-2001 § 14; IWC Wage Order 7-2001 § 14. The Wage
Orders provide no definitions for “nature of the work,”
“reasonably permits,” or “suitable seats.” Thus, we must start
with the text of Section 14 to find the meaning of these
phrases. See Martinez v. Combs, 231 P.3d 259, 268 (Cal.
2010).
Kilby and Henderson contend that Section 14 refers to
discrete tasks performed by employees. In their view, if an
employee is engaged in a task that can objectively be
performed while seated, the employer must provide the
employee with a suitable seat. Under this interpretation,
neither the employee’s other tasks nor the employer’s
business judgment would affect whether the nature of the
work reasonably permits the use of seats.
CVS and JPMorgan contend that the language of Section
14 requires courts to take a holistic approach. Under this
approach, courts should discern the nature of an employee’s

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work by considering the entire range of tasks the employee
actually performs in combination with the employee’s job
description, the layout of the workplace, the employer’s
business judgment concerning the employee’s job, and any
other factors the court deems relevant. An employer would
only be subject to Section 14(A) when all of these factors
taken together reasonably permit the use of a seat.
The district courts in both cases adopted a holistic
approach. The district court in Kilby v. CVS Pharmacy, Inc.
read Section 14(A) to require an inquiry into how an
employee spends his or her time during the workday. The
district court applied the holistic approach by asking whether
“the majority of an employee’s assigned duties must
physically be performed while standing[;]” if the answer is
yes, then “the ‘nature of the work’ requires standing.”2 The
district court in Henderson v. JPMorgan Chase Bank cited
Kilby v. CVS Pharmacy, Inc. in its interpretation of Section
14(A).
Even though the holistic approach and the individual task
approach would produce drastically different results, the text
of the regulation precludes neither. Because “the language
allows more than one reasonable construction, we may look
to such aids as the legislative history of the measure and
maxims of statutory construction.” Martinez, 231 P.3d at
2

Even if the proper interpretation of Section 14(A) requires a holistic
approach, Kilby and JPMorgan disagree with the “majority of an
employee’s assigned duties” application of that approach. Kilby contends
that an employee may be entitled to a seat even if all of the employee’s
tasks that reasonably permit the use of a seat consume less than a majority
of the employee’s time. JPMorgan contends that an employee may not be
entitled to a seat, even if tasks that reasonably permit the use of a seat
consume the majority of an employee’s time.

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268. “In cases of uncertain meaning, we may also consider
the consequences of a particular interpretation, including its
impact on public policy.” Id. (quoting Wells v. One2One
Learning Found., 141 P.3d 225, 236 (Cal. 2006)). “We are
hesitant, however, to speculate about which general maxims
of statutory construction the [California Supreme Court]
would use to interpret [these Wage Orders] and what result
that court would reach.” See Doyle v. City of Medford,
565 F.3d 536, 542 (9th Cir. 2009).
Section 14 could have a dramatic impact on public policy
in California as well as a direct impact on countless citizens
of that state, both as employers and employees. Even a
conservative estimate would put the potential penalties in
these cases in the tens of millions of dollars. See Cal. Lab.
Code § 2699(f)(2) (“If, at the time of the alleged violation,
the person employs one or more employees, the civil penalty
is one hundred dollars ($100) for each aggrieved employee
per pay period for the initial violation and two hundred
dollars ($200) for each aggrieved employee per pay period
for each subsequent violation.”); see also Home Depot
U.S.A., Inc. v. Super. Ct., 120 Cal. Rptr. 3d 166, 177 (Cal. Ct.
App. 2010) (finding California Labor Code § 2699(f)(2)
applies to Section 14 of Wage Order 7-2001); Bright v.
99cents Only Stores, 118 Cal. Rptr. 3d 723, 730 (Cal. Ct.
App. 2010) (same).
Such liability could be imposed upon a large number of
employers throughout California, depending on the
interpretation given to Section 14. Indeed, in addition to the
three employers now before this panel facing potential
penalties for violating Section 14, numerous actions have
been brought against other employers in California state
courts based on the same claim. See, e.g., Hall v. Rite Aid

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Corp., Case No. D062909 (Cal. Ct. App. 2013). Moreover,
were Section 14 given an interpretation that imposed liability
on these employers, it would also mean thousands of
California’s employees would be entitled to seats. These
“consequences of a particular interpretation,” Martinez,
231 P.3d at 268, would most appropriately be considered and
weighed by California’s highest court.
Furthermore, “the existence of parallel state and federal
proceedings that address the same legal question presents the
risk of inconsistent judgments as to the proper interpretation
of [the Wage Orders].” See Doyle, 565 F.3d at 544. Due to
the operation of the federal Class Action Fairness Act, many
cases of this type have been and likely will continue to be
removed to federal court and thus evade review by California
courts. A definitive decision from the California Supreme
Court would avert the potential uncertainty of federal courts
and state courts adopting different interpretations of Section
14 and would provide businesses in California with clear
guidance on how to comply with the Wage Orders.
In sum, we do not think it is appropriate to substitute our
judgment for that of the California Supreme Court in
interpreting California Wage Orders that could have farreaching effects on California’s citizens and businesses.
Instead, “[i]n a case such as this one that raises a new and
substantial issue of state law in an arena that will have broad
application, the spirit of comity and federalism cause us to
seek certification.” Kremen v. Cohen, 325 F.3d 1035, 1038
(9th Cir. 2003).

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IV.

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Administrative Information

The title and number of the cases are as follows: Kilby v.
CVS Pharmacy, Inc., Case No. 12-56130 and Henderson v.
JPMorgan Chase Bank, Case No. 13-56095.
The name and address of counsel for the parties are as
follows:
Kilby v. CVS Pharmacy, Inc., Case No. 12-56130
Counsel for Plaintiff-Appellant Nykeya Kilby
Michael Rubin
Connie K. Chan
Altshuler Berzon LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Kevin J. McInerney
McInerney & Jones
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

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KILBY V. CVS
Matthew Righetti
Righetti Glugoski, PC
456 Montgomery Street, Suite 1400
San Francisco, CA 94104
Counsel for Defendant-Appellee CVS Pharmacy, Inc.
Timothy J. Long
Orrick, Herrington & Sutcliffe LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814
Michael D. Weil
Orrick, Herrington & Sutcliffe LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105
Henderson v. JPMorgan Chase Bank, Case No. 13-56095

Counsel for Plaintiffs-Appellants Henderson and
Lampkins
Kevin J. McInerney
18124 Wedge Parkway, 503
Reno, NV 89511
Counsel for Plaintiff-Appellant Dalton
Mark A. Ozzello
Arias Ozzello & Gignac LLP
6701 Center Drive West, Suite 1400
Los Angeles, CA 90045

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Counsel for Plaintiff-Appellant Salazar
Raul Perez
Capstone Law APC
1840 Century Park East, Suite 450
Los Angeles, CA 90067
Counsel for Defendant-Appellee JPMorgan Chase Bank
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
As required by Rule 8.548(b)(1), we designate PlaintiffsAppellants Nykeya Kilby, Kemah Henderson, Taquonna
Lampkins, Carolyn Salazar, and Tamanna Dalton as
petitioners if the request is granted.
The Clerk of the Court is hereby directed to immediately
transmit to the Supreme Court of California, under official
seal of the Ninth Circuit, an original and ten copies of this
order and request for certification, a certificate of service on
the parties, and all relevant briefs and excerpts of record
pursuant to California Rules of Court 8.548(c)–(d). The
Clerk shall provide additional record materials if so requested
by the Supreme Court of California. Cal. R. Ct. 8.548(c).

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These cases are withdrawn from submission, and further
proceedings in this court are stayed pending final action by
the Supreme Court of California. The parties shall notify the
Clerk of this Court within seven days after the Court accepts
or rejects certification, and again within seven days if the
Court renders an opinion. The panel retains jurisdiction over
further proceedings.
IT IS SO ORDERED.