For how many consecutive days may an employer require an employee to work?  Given the maze that is California employment law, one might think the answer to that question was settled long ago.  But no. The California Supreme Court only recently deciphered the meaning of 120-year-old statutes on the subject.  The high court’s answer is generally favorable to employers, but employers must review their policies in light of the court’s ruling.

Background

California law prefers a 40-hour workweek, and an eight-hour workday. Employers desiring employees to work longer hours must pay a premium wage: overtime.

Many employees work the standard five day per week schedule. But others do not, particularly in service-based industries, such as hospitality, health care, and retail. It is common in these industries for employees’ schedules to fluctuate based on volume, the season, and other factors. Employees also must cover other employees’ absences, lest service suffer. 

Such was the case of Christopher Mendoza, who worked as a barista and sales clerk at a Nordstrom department store.  Asked to pick up additional shifts, Mendoza once worked 11 days in a row.  He later sued Nordstrom, citing sections of the California Labor Code that entitle employees to one day’s rest every seven days.

Defining “Seven”

The Labor Code contains several sections addressing employees’ right to a day of rest. Section 551 states that employees “are entitled to one day’s rest . . . in seven.” Section 552 prohibits employers from “caus[ing]” employees to work more than six out of seven days. The right is not absolute, with exemptions for some workers, and a section that permits employees to ‘average’ one day’s rest in seven over a one month period in certain cases. The law also provides for premium pay when employees work seven consecutive days in a workweek.

The Mendoza case focused on what the Legislature meant by “seven” days in sections 551 and 552.  Mendoza argued that the seven-day period is computed on a rolling basis:  if any employee works six consecutive days, the seventh must be taken off as a day of rest.  

Nordstrom, on the other hand, argued the Legislature’s reference to seven days should be interpreted in the context of a traditional workweek.  Although Mendoza indeed worked 11 days in a row, he was given a day off during each workweek. The days off did not occur on the same day each week, resulting in Mendoza’s long stretch of work.

The Supreme Court Weighs In   

Mendoza’s lawsuit was venued in federal district court. The district court sided with Nordstrom, but could not rely on any binding California precedent to do so, because there was none. Mendoza appealed to the Ninth Circuit Court of Appeals. The panel asked the state Supreme Court to interpret the California statute because of the novelty of the state law issue.  

Like the district court, the Supreme Court sided with Nordstrom. The Court ruled that an employer need only provide one day off during each workweek.  The day off therefore may fall at the beginning of one workweek and the end of the following workweek without violating the Labor Code.

Voluntary Waivers

The Supreme Court also addressed what it means for employers to “cause” employees to work seven days in a workweek. For example, what happens if an employee wants to work all seven days in a workweek to earn money or help out a co-worker? 

Mendoza argued that an employer violates the law simply by permitting an employee to work seven days.  Nordstrom countered that “cause” does not mean merely to “permit,” but rather to “compel.”  Thus, Nordstrom argued that employees should be free to decide for themselves if they wish to work all seven days in a workweek.

The Supreme Court refused to adopt either position. The Court held that employers must fully apprise employees of their right to a rest day and then remain neutral as to whether employees choose to exercise that right.  An employer cannot encourage an employee to work a seventh day, but does not face liability if an employee voluntarily decides to do so. 

An Exception to the Rule

Finally, the Court grappled with yet another old statute that provides an exception to the rest day rule for part-time employees.  The Court ruled that the prohibition on seven-day schedules does not apply if the employee works no more than 30 hours total and no more than six hours each day during that workweek.  (Nordstrom had argued just one work day had to be less than six hours).

Tips for Employers

Employers should ensure their policies are compliant with the Mendoza decision for both for full-time and part-time employees. Policies should clearly define the start and end of the workweek, which is important for several reasons beyond the day’s rest statutes. 

Policies should affirmatively state that employees are entitled to one day’s rest in seven, and that the employer does not encourage employees who take on extra shifts to work a seventh day.  The employer should also make clear that it will not retaliate against employees who do not work on the seventh day. Finally, employers should document that employees are apprised of their right to a day’s rest to satisfy the Court’s holding in case an employee claims to have been unaware of the rule.

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