I want my day of rest. It’s a story as old as the bible. Literally. Can an employer require, or even allow, an employee to work seven days a week without a day of rest? I get that question a lot. Until now, no cases directly addressed the point.
Court Tackles Day of Rest Question
Every once in a while a federal appellate court won’t know the answer to state law questions. When that happens, they can ask the California Supreme Court for answers. In Mendoza v. Nordstrom, the Ninth Circuit needed answers to some questions about California’s “day of rest” provisions. The California Supreme just answered those questions.
Labor Code sections 550–558.1 prohibit an employer from “caus[ing] his employees to work more than six days in seven.” (Labor Code §552) That doesn’t apply if the employee works less than 30 hours per week or less than 6 in a day. (Labor Code §556) Those statutes, however, don’t answer all the questions.
Mendoza worked as a barista and later a sales representative for Nordstrom in San Francisco and San Diego. On several occasions, Mendoza’s supervisor and co-workers asked him to fill in for another employee. This meant Mendoza had to work more than six consecutive days. Mendoza sued Nordstrom for allegedly violating California’s day of rest provisions. The trial court concluded:
(1) section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days; but
(2) under section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period, as Mendoza and Gordon did; and
(3) Nordstrom did not “cause” Mendoza to work more than six consecutive days because it did not force or coerce him to do so.
The court dismissed the action and Mendoza appealed. The Ninth Circuit asked the Supreme Court to answer a couple of questions.
Day of Rest Questions Answered
Here’s what the California Supreme Court said:
Question #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?
Answer: 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.
This means employees can work more than seven days in a row when those days span multiple workweeks. For example, the standard workweek is Sunday through Saturday. Employers can schedule an employee to work Wednesday through Wednesday. The seven consecutive days span multiple workweeks.
Question #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?
Answer: 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.
This one is fairly straight-forward. Labor Code section 556’s exception for shorter shifts only applies if all the shifts are less than 6 hours.
Question #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?
Answer: 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.
This, I think, is the most important part. If employers advise employees of their right to a day of rest, employees can work seven days in a row. To me, this makes sense, since the wage orders usually require employers to compensate employees at the overtime rate for the first eight hours worked on the “seventh consecutive day of work in a workweek.” See, e.g., IWC Order 4-2001, subs. 3(A)(1). Why require seventh day overtime, if the employer can’t let the employee work seven days in a row?
What does “Cause” mean?
Mendoza claimed an employer could not “allow,” “suffer,” or “permit” an employee to work a seventh day. Nordstrom argued “unless the employer requires, forces, or coerces seventh-day work, it has not caused the employee to work.” The court rejected both arguments, and substituted its own:
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.
The court specifically held, “[t]he payment of overtime is not an impermissible employer inducement; it is, instead, simply compliance with a federal- and state-imposed legal obligation.”
Employers with employees working without a day of rest should advise employees of their right to a day off. Even better, they should ask the employee if s/he wants to work seven days in a row and leave it up to the employee’s discretion. Getting it in writing helps, of course.
Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
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