The California Supreme Court recently issued Mendoza v. Nordstrom, Inc., 2 Cal.5th 1074 (2017), clarifying California Labor Code §§ 551 and 552’s requirements that an employee is entitled to one day of rest in seven and that an employer shall not cause an employee to work more than six days in seven.
Mendoza was an ex-Nordstrom employee. On several occasions a supervisor or coworker asked him to fill in for another employee. As a result, he worked more than six consecutive days. Some but not all of his shifts lasted six hours or less.
Mendoza filed a putative class action and a Private Attorneys General Act (PAGA) claim. He alleged Nordstrom violated his statutorily guaranteed days of rest. Nordstrom removed Mendoza’s action to federal court where he and his fellow plaintiff were unsuccessful. Plaintiffs appealed the district court’s adverse judgment to the Ninth Circuit. The Ninth Circuit then requested the California Supreme Court to resolve what the Ninth Circuit deemed unsettled questions of California law regarding the Labor Code’s day of rest requirements by answering the following questions:
- When is a day of rest required?
Answer: The required day of rest is based on an employer’s workweek, not on a rolling day basis. Therefore, an employee may be required to work more than six consecutive days as long as he or she is allowed to take one day off during each employer’s work week.
- How Does the Six-Hour Exception Apply?
Answer: Labor Code § 556 provides that Labor Code §§551 and 552 do not apply when the total hours of employment do not exceed 30 hours in any week or six hours in any day of that week. The exemption for employees working shifts of six hours or less applies only to those employees who never exceed six hours of work on any day of the work week.
- What Does it Mean for an Employer to “Cause” an Employee to Work More than Six Days in Seven?
Answer: An employer causes an employee to go without a day of rest when it induces the employee to forgo the employee’s statutorily guaranteed day of rest. However, nothing in the statute forbids an employer from allowing an employee, who is folly apprised of his or her entitlement to a day of rest, from voluntarily choosing not to take the day of rest to which he or she is entitled. As if it were drafting a footnote to the Fourth Commandment, the California Supreme Court put it this way: “An employer cannot affirmatively seek to motivate an employee’s forsaking rest, but neither need it act to prevent such forsaking.”
For further information or questions, please contact Gary A. Pemberton or any of the other attorneys at Shulman Bastian Friedman & Bui LLP at 949-340-3400.