Yay! A day of rest—as if! But that’s essentially how the California Supreme Court answered questions posed by the 9th Circuit Court of Appeals (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington).
The supreme court recently resolved unsettled questions about the construction of the day-of-rest statutes found in California’s Labor Code. As this article explains, the court answered three questions about employees’ right to a day of rest, when a certain exception applies, and what it means to “cause” an employee to work on a seventh consecutive workday.
Factual background
“Brian” and “Arianna” are former employees of Nordstrom, Inc., a retail chain with locations throughout California and other states. Brian worked as a barista and later a sales representative for Nordstrom in San Francisco and San Diego. Arianna worked as a sales associate in Los Angeles.
On several occasions, Brian was asked by a supervisor or a coworker to fill in for another employee, which resulted in him working more than 6 consecutive days. Some, but not all, of his shifts lasted 6 or fewer hours. Similarly, on at least one occasion, Arianna worked more than 6 consecutive days, with some, but not all, of her shifts lasting 6 or fewer hours.
Brian sued Nordstrom, and the company had the case transferred to federal court. The parties agreed to allow Arianna to join her complaint against Nordstrom with Brian’s so all of their claims could be resolved in a single action.
The issue was whether Nordstrom violated Sections 551 and 552 of the California Labor Code by failing to provide Arianna and Brian their statutorily guaranteed days of rest. Specifically, Section 552 prohibits an employer from “caus[ing] his employees to work more than six days in seven.” According to Section 556, the rule doesn’t apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one [workday].”
The trial court concluded that (1) Section 551 guarantees a day of rest on a rolling basis for any seven consecutive days, but (2) under Section 556, the guarantee doesn’t apply as long as an employee had at least one shift of six or fewer hours during the period, as Brian and Arianna did, and (3) Nordstrom didn’t “cause” Brian or Arianna to work more than six consecutive days because it didn’t force or coerce them into working. The trial court therefore dismissed the action.
After the former employees timely appealed, the 9th Circuit filed an order asking the California Supreme Court to resolve unsettled questions of California law related to the operation of the state’s day-of-rest statutes. The supreme court granted the 9th Circuit’s request.
When Is a Day of Rest Required?
Two related provisions of the Labor Code ensure day-of-rest protection for employees. First, under Section 551, every “person employed in any occupation of labor is entitled to one day’s rest [from work] in seven.” Second, according to Section 552, no “employer of labor shall cause his employees to work more than six days in seven.” The supreme court considered whether the day-of-rest protection applies on a week-by-week basis or on a rolling basis.
Under the weekly interpretation, the calendar is divided into 7-day blocks and the Labor Code provisions ensure at least 1 day of rest in each block, but an early day of rest in one week and a late day of rest in the next week may lead to an employee working 7, 8, or more days in a row—but no more than 6 days out of 7 on average. Under the rolling interpretation, the provisions apply on an ongoing day-by-day basis, so an employee who has worked the preceding 6 days in a row is presumptively entitled to rest on the next day.
The supreme court concluded that Sections 551 and 552, read fairly in light of statutory history, Industrial Welfare Commission Wage Orders, and the statutory scheme, are most naturally construed to ensure employees at least 1 day of rest during each week rather than 1 day in every 7 on a rolling basis.
How Does the 6-Hour-Day Exception Apply?
Section 556 provides that the required day of rest in 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 [workday].”
Brian and Arianna argued that the elimination of the seventh-day-of-rest protection applies only to employees who work no more than 6 hours each and every day of a given week. By interpreting the statutory language in the context of the whole statute and the interrelated limits of 30 hours and 6 hours, the supreme court agreed with them. Thus, an employee must work 6 or fewer hours each day of the week for the exception to apply.
The Meaning of ‘Cause’
Section 552 provides that an employer may not “cause his employees to work more than six days in seven.” Brian and Arianna contended that whenever an employer allows, suffers, or permits an employee to work a seventh day, it has caused the employee to work.
Nordstrom argued that unless the employer requires, forces, or coerces work on the seventh day, it hasn’t caused the employee to work. The trial court agreed that Nordstrom didn’t “cause” Brian and Arianna to work on the seventh day because it didn’t “force or coerce” them to do so.
The supreme court concluded neither definition is sufficient. Instead, it held that “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.” Mendoza et. al v. Nordstrom, Inc. (California Supreme Court, 5/8/17).
Bottom Line
We now have more clarity for determining compliance with California’s (1) requirement to provide employees a day of rest each week, (2) when an employee qualifies for an exception to the rule, and (3) what it means to “cause” an employee to work a seventh consecutive day in violation of the statute. We now know that:
- The measuring week is a block of 7 days (not counted on a rolling basis).
- A day of rest must be provided if on any one day in the workweek the employee works more than 6 hours, unless he works no more than 30 hours during that workweek.
- An employer must apprise its employees of their entitlement to a day of rest, and if the employer is absolutely neutral in allowing an employee to exercise that right, it doesn’t violate the day-of-rest mandate if the employee chooses to work a seventh day in a single week.
Employers should be aware that the day-of-rest provisions don’t prevent an accumulation of days of rest “when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven” (Section 554).
Of course, overtime rules apply if there’s an exception that permits an employee to work 7 consecutive days. Under Section 511, the employer must pay overtime at the rate of 1.5 times the regular rate of pay for the first 8 hours worked on the seventh day of work in any one workweek, and twice the regular rate of pay for any work in excess of 8 hours on any seventh day of a workweek.
Michelle Lee Flores is a contributor to California Employment Law Letter and can be reached at Cozen O’Connor in Los Angeles, mflores@cozen.com.