Overview
The California Supreme Court provided employers some additional clarification—and flexibility—for scheduling employees without violating the state’s strict day of rest rules in Mendoza v. Nordstrom, Inc., S224611 (Cal. 4/8/17). California law prohibits employers from requiring nonexempt employees to work more than six days a week, but the court said the clock restarts each workweek rather than continuing to run on a rolling basis. In addition, employers are not liable if their employees choose to work a seventh day, so long as the employer advises them of their right to rest and does not encourage employees to skip their day of rest.
One Day of Rest Per Workweek
California Labor Code §§ 551 and 552 require employers to grant nonexempt employees one day of rest per week. The employees in Mendoza argued that those provisions required one day of rest in any six day period, calculated on an ongoing day-by-day basis. The California high court disagreed, holding instead that an employer must grant one day of rest in an established workweek—a set block of seven days.
Under that interpretation, an employer can change the day of rest from workweek to workweek, even if that means that an employee will work more than seven consecutive days in a row. For example, an employer would not violate the law in a Sunday to Saturday workweek if an employee took Sunday off in the first workweek, worked 12 consecutive days, and took the next Saturday off in the second week.
The court noted that California Labor Code § 554 provides an exception if “the nature of the employment reasonably requires that the employee work seven or more consecutive days.” In such cases, the employer can comply with the law if the days of rest average out to one day per week over a calendar month. (Of course, the employer may owe premium pay for the seventh day of work. See California Labor Code § 510(a).)
Employers Cannot Encourage Seventh Day of Work
California Labor Code § 552 prohibits employers from “causing” employees to work seven days in a row. The court clarified that the word “cause” required some affirmative action on the employer’s part. It stated that an employer must “apprise employees of their entitlement to a day of rest” and then “maintain absolute neutrality as to the exercise of that right.” An employer “may not encourage its employees to forgo rest or conceal the entitlement to rest, but [it] is not liable simply because an employee chooses to work a seventh day.”
We expect continued litigation over what it means to “encourage” an employee to waive their day of rest. In the meantime, employers should inform employees in writing of their right to a day of rest and avoid scheduling employees for seven mandatory work days in a workweek unless another exception applies.
The Limited Part Time Exception
Finally, the court clarified California Labor Code § 556’s exception for employees who work less than 30 hours a week or six hours a day. The court ruled that this exception applies only to employees “who never exceed six hours of work on any day of the workweek.”
