The California Supreme Court has agreed to weigh in on the number of consecutive days an employee may legally work without running afoul of the state's so-called “day of rest” statute.
The Initial Claim – Mendoza v. Nordstrom
In 2009, Christopher Mendoza filed suit against his former employer, Nordstrom. Mendoza claimed the employer required him to work for more than six consecutive days without a day off, in violation of sections 551 and 552 of the California Labor Code, the so-called “day of rest” law. Section 551 provides that “every person employed in any occupation of labor is entitled to one day's rest therefrom in seven,” while Section 552 states that “no employer of labor shall cause his employees to work more than six days in seven.” California Labor Code Section 556 exempts an employer from the day of rest requirement “when the total hours worked by an employee do not exceed 30 hours in any week or six hours in any one day thereof.”
Mendoza claimed that he worked more than six consecutive days on three occasions. On each of these occasions, Mendoza was not originally scheduled to work more than six consecutive days but did so after being asked by a coworker or supervisor to fill in for another employee.
Another employee, Megan Gordon, joined the suit in April 2011. She worked at a Nordstrom Rack store for more than six consecutive days on one occasion, although on two of those days she worked fewer than six hours.
Federal Court Judge Rules in Favor of Nordstrom
Section 551 applies on a rolling basis to any consecutive seven-day period rather than a workweek as defined by an employer (such as Nordstrom's Sunday-to-Saturday schedule), the court said. While that would appear to mean the defendant violated Sections 551 and 552, Labor Code Section 556 exempted Nordstrom from liability because each plaintiff worked fewer than six hours on at least one day in the consecutive seven days of work. And even if the exemption did not apply, Nordstrom did not “cause” Mendoza or Gordon to work more than seven consecutive days because they voluntarily chose to waive their rights and work extra days, the court added.
“The day of rest statutes only prohibit an employer from requiring or causing an employee to work more than six consecutive days,” U.S. District Court Judge Cormac J. Carney wrote. “An employee can waive that protection if he or she wants to, which is exactly what Mr. Mendoza and Ms. Gordon did here.”
This conclusion was consistent with the regulatory history of the “day of rest” law and was also confirmed by the California Supreme Court in Brinker Restaurant Corp. v. Superior Court, where the court found that employees could waive their right to a meal break, the court explained.
Gordon and Mendoza Appeal to the Ninth Circuit Court of Appeals
The Ninth Circuit found the interpretations proffered by both sides plausible, discovered no useful legislative history, and found no California appellate law to provide a guide, so it certified three questions to the state's highest court:
(1) California Labor Code section 551 provides that “every person employed in any occupation of labor is entitled to one day's rest therefrom in seven.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?
(2) California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?
(3) California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?
California Employment Law
Employees and employers in California should stay tuned for key answers provided by the California Supreme Court in 2016. In the meantime, don't hesitate to contact leading California employment lawyers at Kingsley & Kingsley.
Take advantage of a free initial consultation to discuss your specific case by calling the toll free number(888) 500-8469 or click here to contact us regarding your “day of rest.”