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By Nestor Barrero and Regina Musolino, Los Angeles-Century City Office of Constangy, Brooks, Smith & Prophete, LLP

California  law  requires  that  employees  get  one  day’s  rest  in  a  workweek. Requiring employees to work seven days in a row can subject employers to civil penalties, and even criminal liability. On May 8, the state Supreme Court, responding to a request from the U.S. Court of Appeals for the Ninth Circuit, issued  a  ruling  addressing  at  least  some  of  the  ambiguities  in  the  statutory scheme. The case is Mendoza v. Nordstrom, Inc.

The California Labor Code provides that employees are entitled to “one day’s
rest therefrom in seven” (Section 551) and that “[n]o employer of labor shall
cause  his  employees  to  work  more  than  six  days  in  seven”  (Section  552).
Section 556 states 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.” These statutes have caused
confusion  about  at  least  three  points:  (1)  whether  “seven  consecutive  days”
refers  to  the  employer’s  designated  workweek  or  a  rolling  period  of  seven
days, (2) when the exception applies, and (3) what it means for an employer to
“cause” employees to work more than six days in seven.

Two former employees of Nordstrom appealed a judgment from a federal court
in California, in which the court found that Nordstrom did not violate California’s
day of rest statutes. The Ninth Circuit asked the California Supreme Court to
answer the following questions:

  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 (§
    552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?

Day of rest is required “per workweek”

The California Supreme Court held that Sections 551 and 552 require that employees be given “at least one day of rest during each [work]week, rather than one day in every seven on a rolling basis.” While acknowledging that wage and hour laws are to be “given liberal effect to promote the general object sought to be accomplished,” the court found that it was the Legislature’s intent to “ensure employees, as conducive to their health and well-being, [receive] a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.”

Moreover,  California  Labor  Code  Section  554  “provides  employers  and  employees  some  latitude” by  ensuring  that  “over  the  course  of  every  calendar  month  an  employee  must  receive  ‘days  of  rest equivalent to one day’s rest in seven.’”

Here is an example of how the “rolling” versus “workweek” period would operate, assuming no exemptions applied: In a workweek that ran from Monday through Sunday, the employee would be entitled to one day off. If a rolling period applied, and if the employee took Monday as her day off in Workweek 1, the employer would be required to give her Monday off in Workweek 2 because that would be seven days after her prior day off. (Alternatively, the employer could give her a second day off later in Workweek 1.) However, if the day of rest is calculated based on a “workweek,” then the employer could give her any day off in Workweek 2 without being in violation of the statute because each workweek would be viewed as its own unit.

Thus, this part of the Supreme Court’s ruling was helpful to employers.

Exemption applies only if employees work six or less hours per day on “each and every” day
of the workweek

Second, the Court held that the six-hour requirement applies only when employees work six hours or less on each day of the workweek.

Nordstrom  argued,  and  the  federal  court  had  agreed,  that  the  exemption  provided  in  Section  556 applied if an employee worked six hours or less on any one day during the workweek, but the state Supreme Court disagreed. The Supreme Court looked at both of the limits set forth in Section 556 (“do not exceed 30 hours in any week or six hours in any one day”). The Court found that these limits must considered  together.  Under  Nordstrom’s  proposed  interpretation,  the  Court  said,  either  the  30-hour weekly limit or the six-hour daily limit would be rendered superfluous, depending on the circumstances.
For example, the Court noted, if both the weekly and daily limits must be satisfied, under Nordstrom’s interpretation, an employee who worked only 30 hours (or less) in a week would always have at least one day in the workweek of six hours or less, making the daily limit unnecessary. On the other hand, if either the weekly or daily limit (but not both) had to be satisfied, under Nordstrom’s interpretation, an employee who worked more than six hours a day for seven consecutive days would always have worked 42 hours at a minimum, making the weekly limit unnecessary.

(The  Supreme  Court  did  not  decide  whether  the  weekly  and  daily  limits  are  both  required  for  the exemption.)

Employers must inform employees of their rights to day of rest “and thereafter to maintain absolute neutrality”

Third, the Court turned to what it means for an employer to unlawfully “cause” an employee to work

more than six days in seven. Disagreeing with the plaintiffs, the Court refused to find that an employer“causes” an employee to forgo a day of rest simply by “suffering,” or allowing, the employee to work on the seventh day. Disagreeing with Nordstrom, the Court also refused to find that “cause” required employer force or coercion.

Instead, the Court 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.”

Thus, an explicit order to an employee (or more subtle “encouragement”) to work on the seventh day of a workweek would violate Labor Code Sections 551 and 552, but passively allowing an employee to work on the seventh day would not: “An employer cannot affirmatively seek to motivate an employee’s forsaking rest, but neither need it act to prevent such forsaking.”

Recommendations for employers

  • Clearly  define  the  workweek. Because  the  Court  recognized  that  one  day’s  rest  within  a  workweek does not occur on a rolling basis but within a designated workweek as defined by the employer, it makes sense to assure that the definition of the “workweek” for a particular employer is well known.
  • Avoid incorrect assumptions about the “six hours or less” daily limit. Make sure that your managers  and  HR  advisers  understand  that  the  rest  requirement  is  not  excused  because  an employee happens to work six hours or less on one day of the workweek. For the exemption to  apply,  the  employee  must  have  worked  six  hours  or  less  on  “each  and  every  day”  of  the workweek and/or 30 hours or less for the entire workweek.
  • Make sure employees know their “rest day” rights. To avoid liability for “causing” an employee to work on a seventh day, the employer is required to inform employees of their legal right to a day of rest.
  • Be truly neutral. The Court emphasized that an employer’s obligation, after informing employees of their rights, is to as to whether they exercise those rights. Supervisors and  managers  should  be  instructed  and  trained  to  avoid  remarks  or behavior that might not be viewed as “neutral” by employees – in other words,  they  should  avoid  both  overt  and  subtle  “encouragement”  to employees to forgo their day of rest.