Recent Supreme Court Decision Resolves Some Questions, Leaves Another 

The California Supreme Court has clarified some of the requirements for employees’ weekly day of rest while leaving another open to interpretation.

Labor Code 551 and 552, respectively, provide: “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven” and “No employer of labor shall cause his employees to work more than six days in seven.”

What Constitutes “Seven Days” for Triggering the “Rest Day” Requirement? Neither of these sections specifies just what “seven day period” might be involved. The possibilities are: (a) the seven days counting from the start of an employer’s defined workweek (e.g., Monday – Sunday); or (b) any rolling seven-day period.

In Mendoza v. Nordstrom, Inc. (May 8, 2017), the Supreme Court ruled that the Legislature intended to count the seven days on an “employer’s scheduled workweek” basis, finding other places in the Labor Code where “week” and “workweek” are used throughout the overtime statutes to mean a “fixed and regularly recurring period.”

By the court’s rejecting the “rolling seven-day” alternative, a business could thus require an employee to work 12 straight days before getting an entitled rest day, if the day off was the first day in the employer’s first scheduled workweek and the next day off was day seven in the employer’s scheduled workweek immediately following. Such consequences would be most common in retail, restaurant and other industries with sometimes significant schedule fluctuations.

What are the Requirements for the “Low Hours” Exception to the Rule? Mendoza also resolved another ambiguity. Labor Code 556 specifies an employee need not have “one-day-of-rest-in-seven” when his/her total hours of employment “do not exceed 30 hours in any week or six hours in any one day thereof.” The Court rejected Nordstrom’s argument it did not have to give an employee a seventh day of rest if he/she worked less than six hours in any day of the workweek, regardless of how many hours the person worked on other days that week. Instead, the section 556 exception is only satisfied when (a) the employee works no more than 30 hours in a workweek; and (b) no more than six hours on any day during that week.

Still Unclear What Employer Actions Constitute Unlawfully “Causing” a Worker to Work the Seventh Day: The Mendoza decision also addressed with only general guidelines the circumstances when an employer might unlawfully “cause” a worker to miss her/his seventh day of rest under Labor Code 552.

Certainly, an employer cannot force, coerce or pressure an employee to miss that rest day. However, the court left open a grey area beyond that, holding “[a]n employer cannot affirmatively seek to motivate an employee‘s forsaking rest, but neither need it act to prevent such forsaking.”

This seems to mean that a business can allow (or can decline to prevent) an employee to work a seventh day if that worker chooses. However, it leaves open whether merely optionally scheduling, encouraging or providing some reward for working that day – the most obvious being compensating the worker for the labor — might be seen as prohibited “motivation.”

While future case decisions – or legislation – might provide more specific definition, employers are currently left with case-by-case uncertainty on just how much encouragement they can lend to employees working all seven days in a workweek when facing heavy business production or delivery demands. One point is certain however: any time any employee works all seven days, the better management practice is to accurately document the circumstances.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

June 13, 2017