The Supreme Court of California recently issued an opinion clarifying sections of the California Labor Code that regulate the number of days per week an employer can “cause” an employee to work. In Mendoza v. Nordstrom, Inc., the Court held that (1) a day of rest is guaranteed in each “workweek” as defined by the employer; (2) there is an exception for employees who work shifts lasting six hours or less every day of the employer-defined workweek; and (3) while an employer cannot “cause” an employee to go without the day of rest, the employee can choose to do so.
California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Section 552 adds that “[n]o employer of labor shall cause his employees to work more than six days in seven.” Section 556 creates an exception for part-time employees whose “total hours of employment [do] not exceed 30 hours in any week or six hours in any one day therein.”
Two ex-Nordstrom employees brought a lawsuit against Nordstrom alleging that Nordstrom had violated sections 551 and 552 by not providing the statutorily guaranteed day of rest, and sought penalties under PAGA after each had occasionally worked more than six consecutive days. The California Supreme Court answered the following questions posed by the Ninth Circuit:
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 (section 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?
In answering the first question, the Court began by acknowledging that the language of the statue was ambiguous. However, after reviewing the legislative history and purpose of the sections and resulting Industrial Welfare Commission Wage Orders, the Court held that the one day of rest must be applied on a set workweek basis instead of on a rolling basis. Requiring the day of rest on a rolling basis would be impractical and would add unnecessary administrative complexity to track employee schedules. Thus, the day of rest can fall on any day during the employer-defined workweek.
As for the second question, the Court agreed with the ex-employees and held that part-time employees who only work shifts of six hours or less can be scheduled to work all seven days. However, if just one shift is over six hours, the exception no longer applies and the employee is entitled to a day of rest.
Last, to address when an employer “causes” its employee to work a seventh day, the Court stated 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 existence of that right.” The Court explained that while “an employer may not encourage its employees to forgo rest or conceal the entitlement to rest…, [it] is not liable simply because an employee chooses to work a seventh day.” Thus, while providing some guidance on an employer’s obligation to inform an employee of the rest day, the Court did not explicitly explain what an employer may do to “cause” an employee to work a seventh day.
To protect against this ambiguity, employers should clearly define the workweek and ensure that employees are advised of their right to one rest day per workweek in the employee handbook or other easily available means. Additionally, managers should be trained to not pressure employees to work all seven days and employers should consider having the employee sign documentation acknowledging he or she is willingly choosing to work the seventh day.