May 11, 2017

On Monday May 8, 2017, the California Supreme court issued its decision in Mendoza v. Nordstrom, Inc., clarifying when and how employers must provide employees with a day of rest under California Labor Code Sections 551 and 552.  The specific questions tackled by the Court were:

    1. Is the one day of rest in seven required by sections 551 and 552 measured by the workweek, or does it apply on a rolling basis to any seven days in a row?
    2. Does the Labor Code’s exemption for those whose work hours do not exceed “six hours in any one day” of the week apply: a) if an employee works six hours or less on at least one day of the applicable week, or b) only when an employee works no more than six hours on each and every day of the week?
    3. What does it mean for an employer to “cause” an employee to go without a day of rest:  force, coerce, pressure, schedule, encourage, reward, permit, or something else?

The Court answered:

    1. 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.
    2. 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.
    3. 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.

When is the Day of Rest Required?

The Court was first faced with determining whether the one day of rest in seven rule meant a day of rest was to be provided per workweek or on a rolling basis.  The Court reviewed the history of the rule, as well as related California wage and hour rules for overtime calculation, and concluded the statute should be read to ensure employees of at least one day of rest each “workweek,” defined as a “fixed and regularly recurring period,” rather than one day in every seven on a rolling basis.  In reaching its conclusion, the Court observed that “applying [the one day off in seven rule] on a weekly rather than rolling basis . . . subjects employees and employers to a single set of consistent day of rest requirements, thereby facilitating the scheduling of work.”

The Six Hour Exception

California Labor Code Section 556 provides: “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.”  The district court had concluded that Section 556 allowed employees to work a seven day period without a day of rest as long as the employee worked 6 or fewer hours on at least one day during the week.  The Court disagreed with the district court’s interpretation, explaining that it failed to comport with basic principles of statutory construction and could lead to absurd results: “If a single day of six hours or less were enough to eliminate seventh-day-rest protection, an employee could be required to work, for instance, six straight eight-hour days, followed by a single six-hour day, followed by six eight-hour days, followed by a six-hour day, ad infinitum.“  The Court found the alternate interpretation — that “[o]nly 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” — was the correct way to read the statute.

The Meaning of Cause

The final question addressed by the Court was the meaning of the word “cause” in Labor Code Section 552, which states that an employer may not “cause his employees to work more than six days in seven.” The employer advocated that the statute was violated only if the employer “requires, forces, or coerces seventh-day work.”  The employee argued that “cause” meant whenever an employer allows, suffers, or permits an employee to work a seventh day.  The Court rejected both interpretations, and found that the 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.

The Court’s interpretation was not surprising given the guidance it issued regarding an employer’s obligation to provide meal and rest breaks in Brinker Restaurant Corp v. Superior Court (2012) 53 Cal.4th1004.

The opinion refers to, but does not further interpret, California Labor Code section 554, which sets forth certain exceptions to the day of rest requirement, including the ability to accumulate days of rest when “the nature of the employment reasonably requires that the employee work seven or more consecutive days,” and the employee receives days of rest equivalent to one day’s rest in seven in each calendar month.

Employers still must pay non-exempt employees daily, weekly and seventh day overtime, if applicable.  However, the new guidance from the California Supreme Court clarifies when the day of rest statute is violated, which is considered a misdemeanor and exposes employers and certain individuals to civil penalties as well.

Action Items

In light of the Supreme Court’s clarification of the one day of rest in seven rule, California employers should take the following steps to ensure their compliance:

    • Review and update your policies to apprise employees they are authorized and permitted to one day of rest in seven, subject to the exceptions that may apply.
    • Review and update, if needed, scheduling and pay practices.
    • Provide training to managers so that they are aware of the policies and procedures to ensure legal compliance when scheduling work, including the need to maintain neutrality in regard to whether or not an employee takes the one day of rest in seven.

For further information about the Mendoza case, or assistance in updating your policies and practices, please contact one of the Ricketts Case employment attorneys below.

Hope Case
Northern California
(650) 494-4098

Nancy Kawano
Southern California
(858) 381-4890

Merrili Escue
Southern California
(858) 381-5458