And On The Seventh Day…

By Anthony Amendola and Justine Lazarus

In Mendoza v. Nordstrom, Inc., the California Supreme Court answered some unsettled questions regarding the state’s day of rest statutes.  In short, these provisions of the California Labor Code provide that employees are entitled to at least one day’s rest out of seven.  Specifically, section 551 of the Labor Code states that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”  Section 552 states that “[n]o employer of labor shall cause his employees to work more than six days in seven.”  Section 556 provides an exception to sections 551 and 552, stating that they “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.”

At the behest of the federal Ninth Circuit Court of Appeals, the Supreme Court considered three questions, each of which is discussed below.

(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?”

Considering the text and history of sections 551 and 552, the Industrial Welfare Commission’s (“IWC”) wage orders, and the statutory scheme of the day of rest provisions, the Supreme Court concluded that employees are entitled to one day of rest each work week (as defined by the employer) rather than one day in seven on a rolling basis.  Thus, the Court acknowledged that an employee could be required to work up to twelve consecutive days without violating sections 551 and 552.  For example, if an employer defines a workweek as Sunday through Saturday, then an employee could be given a day of rest on the Sunday of Week 1, could be required to work 12 consecutive days, and then could be given off the Saturday of Week 2.

(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?”

With respect to this question, the Court held that the exemption set forth in Section 556 applies only to those employees 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.

(3) “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?”

As for this question, the Supreme Court held that 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.”  The Court explained that 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 the day of rest or conceal the entitlement to the day of rest, but is not liable simply because an employee chooses to work a seventh day.

Ask MSK:

Are there any exceptions to the day of rest requirement?

Labor Code 554(a) provides a few exceptions.  First, it states that the requirement does not apply “to any cases of emergency nor to work performed in the protection of life or property from loss or destruction, nor to any common carrier engaged in or connected with the movement of trains.”  Second, it states, “Nothing in this chapter shall be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”  Of course, even if an exception applies, pursuant to Labor Code section 510, the employee must be paid one and a half times the regular rate of pay for the first eight hours worked on the seventh day of the workweek and double time for all hours over eight.

Do the day of rest requirements apply to employees working under a collective bargaining agreement?

Labor Code Section 554 (a) states, “The requirement respecting the equivalent of one day’s rest in seven shall apply, notwithstanding the other provisions of this chapter relating to collective bargaining agreements, where the employer and a labor organization representing employees of the employer have entered into a valid collective bargaining agreement respecting the hours of work of the employees, unless the agreement expressly provides otherwise.” Although inartfully worded, this provision allows the parties to a collective bargaining agreement to expressly waive the one day’s rest in seven requirement.

May employees agree to work seven days in a single workweek?

Per the Court’s ruling in Mendoza, an employee may elect to work seven days in a single workweek.  However, the employee may not be coerced into doing so, must be paid the applicable overtime and, as set forth in Labor Code Section 554 still “in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”

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