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“Day of Rest” Requirement Clarified by California Supreme Court

Last week, the California Supreme Court interpreted California’s “day of rest” requirement in a manner detrimental to California employees.

The California Labor Code provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” and “[n]o employer of labor shall cause his employees to work more than six days in seven.” Cal. Labor Code §§ 551-52.  Asked by the Ninth Circuit Court of Appeals to determine whether these “day of rest” requirements apply on a rolling basis to any seven-consecutive-day period or are calculated by workweek, the California Supreme Court in Mendoza v. Nordstrom, Inc. determined the latter.  

Relying on rules of statutory construction, the Court concluded that the former would render obsolete language in the overtime statute requiring premium pay for work on a seventh consecutive day during a particular workweek.  As a result, so long as an employee averages no less than one day of rest for every seven-day workweek in the calendar month, an employee could be required, for example, to work 12 consecutive days during a two-week period.  Although a blow to employees now facing the prospect of grueling work scheduling, employers must still pay employees one and one-half times the regular rate for the first eight hours worked on the seventh consecutive day of work and twice the regular rate for any hours worked thereafter.

The Court in Mendoza also tackled the exception to California’s “day of rest” requirement in Labor Code Section 556, which states, “Sections 551 and 552 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.”   Cal. Labor Code § 556.  The plaintiffs argued that the exemption should only apply if employees worked six hours or less every single day of a workweek, while Nordstrom argued that the correct reading exempted employees who worked six hours or less on oneday in a workweek.

Again turning the rules of statutory construction, this time in favor of employees, the Court correctly concluded that Nordstrom’s interpretation of the exception would render portions of the statute superfluous.  Otherwise, an employee could be required to work seven consecutive days without any rest by working six hours on the first day and eight hours on every day thereafter.  This interpretation of the exception, as the Court pointed out, would “swallow the rule” set forth in Sections 551 and 552.

Finally, although somewhat ambiguously, the Court decided that employers need only “maintain absolute neutrality as to the exercise” of the right to a day of rest, and that, “an employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”

Given the near-infinite ways in which employers pressure and coerce their employees to take unlawful shifts, California courts will undoubtedly continue to struggle with the world “cause” in Labor Code Section 552 post-Mendoza.

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