The California Supreme Court has clarified a major point of ambiguity for employers by unanimously holding in Mendoza v. Nordstrom, Inc., SC S224611 (May 8, 2017), that California’s law requiring “one day’s rest” in seven looks only at the employer’s defined workweek and is not applied on a rolling basis to any seven-day consecutive period. This decision provides employers with more scheduling flexibility, as well as a compliance roadmap to California’s “day of rest” laws.
The Mendoza plaintiffs, who worked hourly positions at Nordstrom and Nordstrom Rack stores, filed a putative class action arguing that Nordstrom violated the day of rest requirement by occasionally requiring the plaintiffs to work more than six consecutive days, even though they typically did not work more than six consecutive days within the same workweek. In challenging Nordstrom’s practices, the plaintiffs relied on:
- Labor Code section 551 which requires employers to give employees “one day’s rest” in seven;
- Labor Code section 552 which specifies that an employer cannot “cause” employees to work more than six days in seven; and
- Labor Code section 556 which provides an exemption to the “day of rest” requirement when “total hours of employment do not exceed 30 in any week or six in any day thereof.”
Although the Ninth Circuit was initially charged with answering these questions, because there were no California state court cases clarifying how the “day of rest” statutes should be interpreted, it asked the California Supreme Court to look into the issues.
Day of Rest Requirements Clarified
The California Supreme Court concluded that Labor Code section 551 only entitles California employees to one day’s rest within a workweek as defined by the employer (i.e., any seven consecutive days, starting with the same calendar day each week). Thus, “[p]eriods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.”
Next, with respect to the section 556 exemption, Nordstrom argued that so long as an employee is given at least one day with no more than six hours’ work during the workweek, the employee can be required to work all seven days without a rest day. The Court disagreed. It concluded that the day of rest exemption applies only to those who do not exceed six hours of work on any day of the applicable workweek. If on any single day an employee works more than six hours, said the Court, a day of rest must be provided during that workweek, unless another exception applies.
Employers May “Permit” Employees to Work Seven Days
Finally, in what is arguably the least clear portion of the opinion, the Court concluded that under section 552 employers only “cause” employees to work through their rest day when they induce or encourage the employee to forgo the day of rest. An employer, however, is not liable for “permitting or allowing an employee, fully apprised of the entitlement to rest,” to “independently” choose to work a seventh day. The Court went on to explain that employers have an obligation to “apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right.” In other words, employers should make sure that any employees who wish to voluntarily work more than six days in a workweek are educated about their right to a day of rest.
The Mendoza decision resolves several previously unanswered questions for employers and should be greeted with a sigh of relief by many -- particularly those in the retail and healthcare industries. This is far cry from the end of these disputes though, and employers would be wise to keep the following in mind:
- Employers must ensure that a day of rest is provided within each workweek, unless all of an employee’s shifts in the workweek are under six hours or the total hours are below 30 such that the section 556 exemption applies.
- Although employers may technically continue to schedule employees for seven days without violating the day of rest provision when an exemption does not apply, they may do so only if they meet fairly strict requirements:
- Employees have been fully informed of their right to the day of rest; and
- The employer maintains “absolute neutrality” as to an employee’s exercise of that right.
- To that end, employers should avoid scheduling employees for seven days in a workweek unless they are certain the 556 exemption applies or that their employees have been fully apprised of their right to a day of rest and voluntarily waive that right – i.e., employees should not be pressured through any punishment (e.g., a less desirable schedule the following week) or reward (e.g., better chances of promotion) to waive a rest day.
- As a practical matter, employers should consider including day of rest information as part of their employee handbooks or trainings.
- Employers should also consider documenting employee day of rest waivers, as well as educating managers about the day of rest rules and cautioning them not to exert pressure or otherwise induce employees to waive their day of rest.
Finally, be mindful that “day of rest” laws do not differentiate between exempt employees (such as managers) and non-exempt employees – penalties apply for both types of employees under the Labor Code. But bear in mind that if a non-exempt employee works all seven days in a workweek, special overtime rules kick in: time and a half for the first eight hours worked on the seventh consecutive day of work in a workweek, and double time for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, wage and hour class actions, trials, appeals, compliance advice and counseling. If you have questions about these developments or other workplace obligations, please contact us at (415) 464-4300.
This Alert is published by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the Alert, and should not be considered legal advice.