June 14, 2017
Authored by: Allison Eckstrom
The California Supreme Court clarified employer obligations under the state’s day of rest statutes, Cal. Labor Code §§ 550-558.1, which entitle employees to one day’s rest in seven. In Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074 (2017), a case that was (mostly) good news for employers, the Court unanimously upheld interpretations of the requirement that largely preserved scheduling flexibility for employers and employees alike.
Three questions were certified to the Court for consideration:
- 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?
The day of rest requirement is calculated by workweek. After finding the plain language of sections 551 and 552 “manifestly ambiguous” and the legislative history irrelevant to the dispute, the Court held that the regulatory and statutory schemes of the day of rest laws required the day of rest requirement to apply during each workweek. The Court looked to past iterations of Wage Orders related to day of rest requirements and to section 510 of the Labor Code, which governs overtime, in deciding that sections 551 and 552 require a day of rest per workweek, and not on a rolling basis.
Importantly, the Court noted that the current wage order governing day of rest requirements only guarantees one day of rest per every seven days on average. In other words, “rest days need not fall on every seventh day and can be spaced out differently in a calendar month,” as long as rest days amounts to “the number of calendar days divided by seven.”
- 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?
The section 556 exemption applies to employees who work no more than six hours on each and every day of the workweek. This holding, which substantially narrowed the applicability of section 556, was the exception to a generally employer-friendly decision by the Court. The Court’s reading of the exemption was intended to preserve the meaning of both the daily limit (6 hours) and weekly limit (30 hours) contained in the text of section 556 itself. The Court also found that if a single six-hour day were held to exempt an employee from the day of rest requirements, employers may attempt to substitute a six-hour day for a full day of rest to circumvent the requirements in sections 551 and 552. Notably, the Court did not decide whether both the daily and weekly limits had to be met in order for the exemption to apply.
- 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?
“Cause” means something else. The Court found that the plaintiffs’ proposed definition – “allowing, suffering, or permitting an employee to work a seventh day” – would be excessively punitive, while the employer’s suggested reading – “requiring, forcing, or coercing” an employee to work a seventh day – failed to capture forms of “implied pressure” that employers could use to persuade employees to forgo a day of rest, e.g. in exchange for benefits or to avoid sanctions. Instead, the Court found that an employer has an affirmative obligation to apprise employees about their entitlement to a day of rest under the law, “and thereafter to maintain absolute neutrality as to the exercise of that right.” In other words, while an employer is prohibited from incentivizing employees to forgo their day of rest, they are not obligated to prevent an employee’s voluntary decision to do so.
Going forward, the Court’s decision regarding the workweek calculation and “average” day of rest means employers will retain scheduling flexibility. However, employers should pay special attention when classifying employees as exempt under section 556; only those employees working a maximum of six hours every day of the workweek fall under the exemption. In addition, while employers should make sure they inform employees about their entitlements under the statute, they can rest assured that they will not incur any liability for a voluntary, unilateral decision by an employee to forgo their rights under sections 551 and 552.
Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations in California. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.