California Supreme Court Clarifies Day Of Rest Requirements
By Swerdlow Florence Sanchez Swerdlow & Wimmer
June 13, 2017
The California Supreme Court recently clarified the state’s “day of rest” statutes, which should help California employers schedule their employees’ hours of work to avoid class and representative lawsuits. Employers should accordingly assess whether employees are being afforded days of rest in a fully compliant manner.
In Mendoza v. Nordstrom Inc., 2 Cal. 5th 1074 (2017), non-exempt plaintiffs alleged, among other things, that Nordstrom failed to provide them with guaranteed days of rest in violation of Labor Code Sections 551 and 552. The lawsuit was brought as a class action, but the rest day claim was brought pursuant to the California Labor Code Private Attorneys General Act (“PAGA”) for civil penalties. The federal district court ruled in Nordstrom’s favor on the merits. After the plaintiffs appealed, however, the Ninth Circuit asked the California Supreme Court to answer the following three unresolved questions about California’s day of rest statutes:
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?
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?
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?
Regarding the first question, the California Supreme Court held that the Labor Code guarantees a day of rest on the basis of each workweek, not on a rolling basis for any seven-day period. Labor Code Section 551 states, “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” and Section 552 states, “[n]o employer of labor shall cause his employees to work more than six days in seven.” The Court agreed with Nordstrom that the day of rest is guaranteed for each workweek, and that periods of more than six consecutive days that stretch across more than one workweek are not per se prohibited.
The Court noted that its holding is consistent with an exception to the day of rest guarantee; namely, Section 554 provides that an employee may work seven or more consecutive days if, in each calendar month, the employee receives days equivalent to one day’s rest in seven. The Court further found its holding consistent with the Labor Code’s overtime scheme, which requires employers to pay double an employee’s regular rate of pay for work performed “on any seventh day of a workweek.”
Thus, employers should ensure that, if an employee works on the seventh day in the workweek, the employee’s schedule balances out such that the employee receives at least one day’s rest in seven for that calendar month.
Labor Code Section 556 provides another exception to the day of rest requirement in stating that “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.” Nordstrom argued that this language meant that so long as an employee is given at least one day with no more than six hours’ work during a one-week period, he or she may be required to work all seven days without a day of rest. The Court disagreed and held that the exemption applies only to those employees 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.
Regarding the final question presented, the Court held that an employer causes its employees to go without a day of rest when it induces the employee to forego 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. Thus, the Court held, 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.” The Court held that an employer may not encourage its employees to forego rest or conceal the entitlement to rest, but is not liable for a violation of the rest statutes simply because an employee chooses to work a seventh day in a workweek.
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