The court rejects a rolling “day of rest” and the duty to prevent the forsaking of a rest day in answering three questions certified by the Ninth Circuit.
The California Supreme Court recently brought needed clarity to the California Labor Code’s “day of rest” provisions (Sections 550-558.1), which the high court described as “manifestly ambiguous.” Mendoza v. Nordstrom, Inc., S224611 (May 8, 2017). The court interpreted these provisions—which subject to certain exceptions state that employers may not “cause . . . employees to work more than six days in seven”—to mean that 1) the Labor Code guarantees a seventh “day of rest” per workweek and, thus, does not prohibit employees from working more than six consecutive days across two workweeks; 2) an employee who works more than six hours on any day during the workweek is not covered by the exemption to the “day of rest” guarantee; and 3) while employers may not induce employees to forgo a guaranteed day of rest, employers have no duty to prevent employees who have been fully apprised of their entitlement from choosing not to take a day of rest.
The Ninth Circuit Court of Appeals certified questions regarding the “day of rest” provisions to the California Supreme Court while hearing the plaintiffs’ appeal of Mendoza v. Nordstrom, Inc., 778 F.3d 834 (9th Cir. 2015). The plaintiffs sought to recover civil penalties on behalf of nonexempt Nordstrom employees in California under the Private Attorneys General Act (PAGA) for Nordstrom’s supposed violations of the Labor Code’s “day of rest” guarantee. The plaintiffs alleged that they had been asked to work additional shifts that resulted in working more than six consecutive days, and that these seven-day periods included at least some days in which the plaintiffs had worked more than six hours.
After a bench trial, the trial court concluded that the Labor Code guarantees one day of rest on a rolling basis for any seven consecutive days, but that the plaintiffs were exempt from this guarantee because they had worked at least one shift of six hours or less during each rolling seven-day period. Moreover, the district court found no liability because Nordstrom did not “cause” the plaintiffs to forgo the “day of rest” as there was no evidence of force or coercion. The plaintiffs appealed and the Ninth Circuit certified the following three unsettled questions to the California Supreme Court:
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?
The California Supreme Court answered all three questions unanimously.
Answer to Question 1: The day of rest should be determined on a per-workweek basis, not a rolling one.
Concluding that the legislature—which enacted the applicable statutes in 1937—likely intended to guarantee one day of rest in each recurring workweek, the court examined legislative history, parallel protections in the Industrial Welfare Commission (IWC) wage orders, and other provisions of the Labor Code. The court ultimately found that the only way to harmonize the “day of rest” provisions with applicable wage orders and other provisions of the Labor Code required interpreting Sections 551 and 552 to guarantee one day of rest per workweek (not per rolling seven-day period).
Answer to Question 2: The “part-time” exception only applies when employees have worked no more than six hours on each individual day of the applicable workweek.
In contrast to Question 1, the California Supreme Court found that the plaintiff employee had the more reasonable interpretation as to when the exception of the “day of rest” guarantee for “part-time” employees should apply. Section 556 of the California Labor Code exempts employees from the “day of rest” guarantee when “the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” The court explained that if an employee works more than six hours on any one day of a workweek, the employee is entitled to a “day of rest” for that week.
Answer to Question 3: There is no liability to employers when employees make informed decisions to forgo the “day of rest.”
Finally, the court clarified that the “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.” This means that while an employer might impermissibly “cause” employees to work more than six days in a week if the employer encouraged forgoing the “day of rest,” there is no liability “simply because an employee chooses to work a seventh day.”
The court interpreted the word “cause” to require the employer to take an “affirmative role in motivating or inducing action” before the employer can be held liable. Importantly, the failure to apprise an employee of his or her entitlement to the day of rest may qualify as inducement if the uninformed employee forgoes the day of rest. But, the court stated that employers have no affirmative duty to prevent informed employees from forgoing the day of rest voluntarily.
To take full advantage of this decision, employers should review their written policies and ensure that the “day of rest” guarantee is clearly explained to California employees in a manner consistent with the California Supreme Court’s interpretation. Employers should also train their supervisors to not require or encourage employees to work all seven days in a workweek, whether by indicating they will benefit if they do or suffer negative consequences if they don’t.
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