Legal Alert - Day of Rest

May 7, 2017

Category: Publications

MENDOZA (CHRISTOPHER) v. NORDSTROM, INC. (GORDON, INTERVENER)
Case Number S224611 (9th Cir. Nos. 12-57130/12-57144, C.D. Cal. No. 8:10-cv-00109-CJC- MLG)
Argued Feb. 7, 2017, Dec. filed May 8, 2017

This case was brought in California state court, then Nordstrom removed to federal court. Most California employers have operated under the assumption that they could assign work to employees for seven or more consecutive days so long as they paid the overtime premiums. For example, an employee who worked on the seventh consecutive day of a workweek was presumed to be entitled to overtime for the first eight hours worked on the seventh day and double time for any additional hours worked in excess of eight hours on the seventh day. The plaintiffs in Mendoza have challenged that assumption and allege that any work on the seventh consecutive day constitutes a violation of the Labor Code, which triggers penalties under the Private Attorneys General Act.

While at Nordstrom, both former employees worked more than six consecutive days. Each time they did so, some but not all of their shifts lasted six hours or less. In a bench trial, the district court ruled that the day-of-rest statute, California Labor Code section 551, applies on a rolling basis to any consecutive seven-day period, rather than by workweek; but California Labor code section 556 exempts Nordstrom from that requirement because each plaintiff worked less than six hours at least one day in the consecutive seven days of work, and even if the exemption did not apply, Nordstrom did not “cause” plaintiffs to work more than seven consecutive days, within the meaning of Labor Code section 552, because there was no coercion; plaintiffs waived their rights under Labor Code section 551 by accepting additional shifts when they were offered. The district court dismissed the case and plaintiffs appealed.

Recognizing that the consequences of any interpretation of the day-of-rest statutes would have profound legal, economic, and practical consequences for employers and employees in California, the Ninth Circuit asked the California Supreme Court to answer three questions. Justice Werdegar wrote the unanimous opinion, deciding as follows:

1. Is the day of rest required by Labor Code sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?

The Supreme Court concluded: 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.

Analysis: The Court considered the two related provisions of the Labor Code that ensure day of rest protection for employees. First, “[e]{:target=”blank”}very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” (Labor Code § 551.) Second, “[n]{:target=”blank”}o employer of labor shall cause his employees to work more than six days in seven.” (Labor Code § 552.) To determine consider whether this protection applies on a week-by-week basis or on a rolling basis, the Court considered the text, which it found ambiguous, the Industrial Welfare Commission Wage Orders, and the statutory context, such as the Legislature’s definition of “week” and “workweek.” The Court reasoned that sections 551 and 552, read in light of all the available evidence, are most naturally read to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.

The Court was not persuaded by the concern that this reading of the statutes will permit employers regularly to impose on employees schedules in which they may rest no more than one day in 12. Labor Code section 554 provides employers and employees some latitude, but ensures that over the course of every calendar month an employee must receive “days of rest equivalent to one day’s rest in seven.” (Labor Code § 554(a).) The Court explained that if at one time an employee works every day of a given week, at another time shortly before or after she must be permitted multiple days of rest in a week to compensate, and on balance must average no less than one day’s rest for every seven rather than one for every 12. Notwithstanding the remedial purposes of the wage and hour laws, the Court found that the Legislature intended to ensure employees, a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.

2. Does the Labor Code 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?

The Supreme Court concluded: 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.

Analysis: Labor Code Section 556 provides: “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 under this provision, 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, noting that the Legislature enacted two interrelated limits on day of rest protections: One, a weekly limit, which relates to employees who work 30 hours or less; the other, a daily limit, which relates to employees who work six hours or less. The Court explained that it must adopt a construction that gives each limit a role in identifying the universe of workers who are otherwise sufficiently protected to not need a mandatory day of rest. Thus, the “six hours or less” daily exception is satisfied only if every daily shift that week has entailed six hours or less of work.

3. What does it mean for an employer to “cause” an employee to go without a day of rest (Labor code § 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else? (See Mendoza v. Nordstrom, Inc., supra, 778 F.3d at p. 837.)

The Supreme Court concluded: 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.

Analysis: Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” Plaintiff employees argued that whenever an employer allows, suffers, or permits an employee to work a seventh day, it has caused the employee to do so. Nordstrom argued that unless the employer requires, forces, or coerces seventh-day work, it has not caused the employee to work. The Court concluded that neither definition was sufficient. “Rather, 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.”

In so ruling, the Court explained that “cause” has been understood to require some affirmative role by the employer in motivating or inducing the employee’s action, not simply the passive failure to prevent action. While for a century employers have been liable for wages for passively suffering or permitting work, the Legislature chose not to write the obligation to afford a day of rest so broadly, and forbade only causing an employee to forgo rest. Given this choice of language, the Court declined to conclude that in Labor Code section 552 the Legislature attached not only liability for wages, but also criminal liability, to an employer’s permitting an employee to work a seventh day. In sum, an employer cannot affirmatively seek to motivate an employee’s forsaking rest, but neither need it act to prevent such forsaking.

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