On January 7, 2017, we posted a blog on our website titled “AB 1066 – On the Seventh Day Thou Shall Rest?” (/blog/2017/01/ab-1066—on-the-seventh-day-thou-shall-rest.shtml). We explained that the California Supreme Court would provide guidance – pertaining to the California Labor Code’s prohibition of employers causing employees to work more than six days in seven – when it issued its ruling in Mendoza v. Nordstrom, Inc.
Just this week, on May 8, 2017, the California Supreme Court issued its ruling in Mendoza v. Nordstrom, answering various questions looming over the heads of California employers since the adoption of AB 1066. In short, the Court provided answers to the following questions/issues:
1. Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.
Rationale: This interpretation ensures that, during each week, every employee will be entitled to at least one rest day. The Legislature has expressly defined a “week” and a “workweek” as “any seven consecutive days, starting with the same calendar day each week. To require the day of rest to apply on a rolling basis would mean the Legislature intended some employees denied a day of rest to receive premium pay, but not others, based on the fortuity of how their work schedules fell in relation to the employer’s established work week. The more logical interpretation is to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.
2. Does the section 556 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 no more than six hours on each and every day of the week?
The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.
Rationale: Only employees asked to work no more than six hours on any one day, and no more than 30 hours total, may be given a schedule with seven days of work. This outcome is consistent with IWC and DLSE interpretations regarding the six hours daily/30 hours weekly exception in California’s Labor Code. Similarly, the California Supreme Court held that the “six hours or less” daily exception is satisfied only if every daily shift that week has entailed six hours or less of work.
3. 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?
An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.
Rationale: An employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forego rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.
The penalty for violating these laws is unclear, but it appears the penalty may possibly be a PAGA violation. If you are considering having your employees work a seventh day, or for any questions regarding this topic or any other employment or labor law inquiries, please contact any one of our attorneys at Sagaser, Watkins & Wieland PC at 559-421-7000. http://www.sagaserlaw.com
Please note that the information in this blog post does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact-specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. The information provided to you in this blog post does not create an attorney-client relationship and inquiries related to this information will not be confidential or subject to the attorney-client privilege. This information should be considered a solicitation for legal representation.