Does the Seventh Day of Rest/ One Day's Rest in Seven Rule Apply to California Agricultural Employees starting January 1, 2017?
Yes. Many employers are aware that AB 1066 will slowly raise overtime wages for agricultural employees beginning January 1, 2019 with a gradual implementation of an 8-hour workday and a 40-hour workweek for agricultural employees that will phase-in over several years. However, a critical aspect of AB 1066 relating to the seventh (7th) day of rest rule is relatively unknown to many employers and due to poor drafting of AB 1066, it appears the one-day's-rest-in-seven for California employees in agriculture became effective January 1, 2017. As a result, it is strongly recommended that California employers in agriculture immediately acknowledge and plan for the fact that AB 1066 ushered in the seventh day of rest/one-day's-rest-in-seven rule for California agricultural employees effective Jan. 1, 2017.
For years, agricultural employers have been exempt from the general rule stating that no employer of labor shall cause his employees to work more than six days in seven. Labor Code section 554 (a) has long provided an exemption to any person employed in an agricultural occupation (meaning that agricultural employers could "cause" employees to work seven days in a row.)
AB 1066, which recently went into effect on January 1, 2017, amended section 554 (a) to delete the exemption for agricultural employers. Unfortunately, the unclear drafting of the statute has left many questions unanswered. For instance, it is not fully apparent whether the day-of-rest exemption went into effect on the January 1, 2017 enactment date, or whether the California Legislature meant for it to be phased in with the overtime pay provisions of AB 1066 which are effective January 1, 2019. However, based on a straight forward reading of AB 1066 it appears the seventh day of rest requirement became effective January 1, 2017. As a result, until we receive further guidance from the state that sets forth a different interpretation of AB 1066, it is strongly recommended that California agricultural employers immediately comply with the seventh day of rest requirement.
Labor Code section 554 does contain one exception for cases of emergency or work performed in the protection of life or property from loss or destruction. Furthermore, when the nature of the employment reasonably requires that the employee work seven or more consecutive days, employers may cause employees to work seven consecutive days, if in each calendar month the employee receives days of rest equivalent to one day's rest in seven.
As noted, there are many questions that have yet to be answered regarding AB 1066. However, the California Supreme Court should provide guidance in the near future when it issues its ruling in Mendoza v. Nordstrom, Inc. In that case, which is currently pending before the California Supreme Court, the court is considering the question: what does it mean for an employer to "cause" an employee to work more than six days in seven? Does it mean to force, coerce, pressure, schedule, encourage, reward, permit, or something else?
Moreover, since Labor Code section 556 exempts employers from providing a day of rest when the total hours of employment do not exceed 30 hours in any week or six hours in any day, the California Supreme Court must decide whether the exemption applies if an employee works less than six hours in any one day of the week or if the exemption only applies when an employee works less than six hours every day of the week.
In addition, as part of AB 1066, the California agency in charge of enforcing labor laws has been tasked with redrafting Wage Order 14, so we hope further guidance regarding AB 1066 will be issued from the state in the coming months.
For information regarding the overtime pay phase in requirements of AB 1066 see our prior blog on this topic athttp://www.sagaserlaw.com/blog/2016/09/governor-signs-ab-1066---agricultural-worker-overtime-bill.shtml
For any questions regarding AB 1066 or any other employment or labor relations inquiries, please contact any one of our attorneys at Sagaser, Watkins & Wieland PC at (559) 421-7000. http://www.sagaserlaw.com/