California employers are all too familiar with the tidal wave of wage and hour litigation they have confronted over the past decade or more – claims alleging misclassification, unpaid overtime, meal period and rest break violations, and pay stub violations, to name just a few. A new decision from the California Supreme Court addresses claims based on long-ignored Labor Code statutes regarding days of rest. Although the decision is favorable for employers in many respects, it nevertheless could foretell another species of wage and hour claim on the horizon.
Labor Code §551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Similarly, §552 provides that “no employer of labor shall cause his employees to work more than six days in seven.”
Although the basic rule regarding days of rest does not apply to certain employees, such as agricultural workers and employees in the railroad industry, it generally applies to most non-exempt employees. California’s Wage Orders create another exception to the rule by providing that “an employee may be employed on seven workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six.” Despite their long existence and broad application, rules regarding days of rest receive relatively little attention from most employers.
In Mendoza v. Nordstrom, Inc., two employees of the Nordstrom department store chain sued their employer in federal court, alleging that Nordstrom had not provided them with days of rest as required by law. After the plaintiffs appealed from a decision dismissing their claims, the Ninth Circuit Court of Appeals asked the California Supreme Court to resolve three questions regarding the interpretation of the relevant Labor Code provisions.
- Is the day of rest required by §551 and §552 calculated by the workweek, or does it apply on a rolling basis to any period of seven consecutive days?
- Does the 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 six hours or less on every day of the week?
- What does it mean for an employer to “cause” an employee to go without a day of rest- force, coerce, pressure, schedule, encourage, reward, permit, or something else?
The Supreme Court examined the legislative history and statutory intent behind the Labor Code provisions and answered the questions posed by the Ninth Circuit Court of Appeals as follows:
- The law requires one day of rest per week, rather than one day of rest in seven on a rolling basis. Periods of six or more consecutive days of work are not per se unlawful.
- The rule regarding employees who work six hours or less applies only to those who work six hours or less on every day of the work week in question.
- An employer “causes” an employee to go without a day of rest if it induces the employee to forego a day off to which he or she is entitled. Employers are not prohibited from permitting employees to work seven consecutive days within a work week if they are fully informed of their right to rest but voluntarily choose not to take a day off.
Interestingly, the Mendoza decision does not directly address the question of whether the rules regarding days of rest apply only to non-exempt employees. The Wage Orders contain a provision stating, similar to Labor Code §556, that employees may work seven days in single workweek when they work a total of no more than 30 hours during the week and no more than six hours in any single day. The Wage Order provision pertains to non-exempt employees only, however, so it does not authorize employers to require exempt employees to work seven consecutive days. Most authorities and commentators assume or interpret the rules regarding days of rest as being applicable only to non-exempt employees, but neither the relevant Labor Code statutes, nor the Wage Orders nor the Mendoza decision say so explicitly.
In the wake of the Mendoza decision, employers should consider adopting policies on days of rest and should be careful to avoid requiring non-exempt employees to work seven days within a single work week unless they work no more than 30 hours during the week and no more than six hours in any single day.