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California Supreme Court on California’s Day of Rest Law

by D. Gregory Valenza | | 5/8/2017

The California Supreme Court issued a long-awaited ruling on California’s “Day of Rest” statutes, contained in the Labor Code at sections 551-558.  The Court’s ruling is  important for employers with workforces that do not work traditional Monday-Friday schedules.  Justice Werdegar, who is retiring this summer, wrote the opinion for a unanimous court.

The case arose in the retail context.  Mendoza worked at Nordstrom. He filled in for other employees, resulting in more than six consecutive days worked (even spanning over 2 work weeks).  Not all his shifts lasted less than six hours.  So, he and some other employees sued Nordstrom, the employer, for violating California’s one day’s rest in seven law.  The case landed in federal court and before the 9th Circuit Court of Appeals. The court asked the California Supreme Court for clarity on the statutes. 

Here are the Ninth Circuit’s questions and the Court’s answers:

1. Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?

A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.

As the Court explained:

Interpreting sections 551 and 552 as applying on a weekly rather than rolling basis does so. It subjects employees and employers to a single set of consistent day of rest requirements, thereby facilitating the scheduling of work. Reading the day of rest statutes this way, the IWC‘s wage orders provide comparable protection but in clearer language, rather than altering or more narrowly guaranteeing employee day of rest protection.

So, if an employee works Tuesday, Wed., Thurs., Fri. Sat. and Sun in week one, that employee does not have to have that following Monday off.  Rather, the seven day rule is measured on a workweek basis. That will make compliance with this part of the Labor Code much easier.

The Court next considered 

2. Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?

The Court answered this question:

The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.

 This question related to Labor Code section 556, which says:

Sections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.

This statute means that the prohibition on working seven days in a workweek does not apply to employees who are part-time as defined in section 556.  But the Supreme Court had to decide whether the term “six hours in any one day” meant that only people who work fewer than six hours per shift, every shift, are not entitled to one day’s rest in seven.  Or, did the law mean that an employee who works less than 30 hours per week AND who works at least one shift of fewer than six hours does not have to have a day off?

The Court’s answer was that only employees who work fewer than six hours a day AND fewer than 30 hours in a workweek are not entitled to one day’s rest in seven. 

only employees asked to work no more than six hours on any one day, and no more than 30 hours total, may be given a schedule with seven days of work. Both the daily and weekly limit serve a role, as some schedules that involve no more than six hours a day might still require more than 30 hours over the course of the week, while some schedules that involve no more than 30 hours over the week might still include one or more days in excess of six hours.

Third, the Court considered what happens when an employee decides to work seven days in a row by switching or asks to work seven days in a row to earn extra money.  Here is the Ninth Circuit’s question:

3. What does it mean for an employer to ―cause‖ an employee to go without a day of rest (§ 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else? (See Mendoza v. Nordstrom, Inc., supra, 778 F.3d at p. 837.)

And here is the California Supreme Court’s answer:

An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

The Court explained

an employer‘s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.

So, this means that employers should include in their policies, such as regarding work schedules, switching, timekeeping, etc., that the employee is entitled to one day’s rest in seven, and that the employer does not encourage employees who take on extra shifts to work a seven-day workweek. The employer should also say that it will not retaliate against employees who do not wish to work on the seventh day, and that any employee who feels required to do so should report the matter to human resources or another member of management.

Employers also should review their scheduling policies to ensure that part-time workers are provided with one day off per workweek if they work more than six hours on any one day in that week. 

This case is Mendoza v. Nordstrom, Inc. and the opinion is here

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