And on the Seventh Day … Penalties Were Assessed

By Sutton Hague Law Corporation on April 27, 2015 in Legal Update

California Supreme Court to Provide Guidance on “Day of Rest” Rules

Flying under the radar of many California employers are Labor Code sections 551 and 552, which state: “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven” (Labor Code § 551) and, “[n]o employer of labor shall cause his employees to work more than six days in seven.” (Labor Code § 552). While California’s “day of rest” rule may seldom be an issue for employers who close their business on the weekends, employers that may have employees working each day of the week should be aware of this ticking time bomb. Violations of the “day of rest” statutes can expose an employer to civil penalties of $200 per employee per pay period, thanks to California’s Labor Code Private Attorneys General Act (“PAGA”), plus an award of attorney’s fees and costs against the employer to recover those penalties for all employees.

An ongoing lawsuit, Mendoza v. Nordstrom, Inc., is raising some important questions about what the “day of rest” statutes mean. The first issue is that the California Labor Code does not define when the “day of rest” must occur. It is unclear whether the “day of rest” need only be provided once per workweek or whether the “day of rest” must be provided for each consecutive seven day period. For example, if a “day of rest” is only required once every workweek, an employer could schedule a day-off the first day of the one week and the last day of the next week, which means the employee must work twelve consecutive days in a row! Another open question is whether employees can waive their right to take the “day of rest.” The employee-Plaintiffs in Nordstrom were not scheduled to work the shifts they claim violated the “day of rest” laws and the trial court determined the employee voluntarily waived the right to a day of rest by accepting additional shifts on their days-off.

In Nordstrom, the California Supreme Court has the opportunity to clarify these questions. The trial court ruled that the seven-day period is any consecutive seven days (i.e., a rolling basis), meaning that an employer could not schedule an employee to work for seven consecutive days. The trial court also held that an employer cannot force an employee to work a seventh consecutive day, but the employee may choose to work. However, the trial court’s ruling is not binding law and will be reviewed by the Supreme Court.

Advice to Employers

– The safest approach, of course, to avoid a seventh consecutive day issue is to not schedule employees to work more than six days in a workweek. (This also avoids the California law requirement to pay non-exempt employees overtime for the first eight hours and double time for any additional hours worked on the seventh consecutive day in the workweek).
– If work must be performed every day of the workweek, the more conservative and careful approach is to schedule additional shifts or hire temporary employees to give regular workers a day off.
– Lastly, if employees are asked to work seven days in a row, employers should ask employees to sign an acknowledgment that states 1) the employee is entitled to a day of rest, and 2) the employee voluntarily waives his/her right to take the day off and freely chooses to work on the seventh day. If an employee refuses to sign such an acknowledgment, do your best to avoid making that employee work seven days in a workweek.

NOTE: Signing an acknowledgment will only protect the employer if the California Supreme Court holds in the Nordstrom case that the seventh day of rest requirement may be waived by employees.

Click Here to read the Ninth Circuit’s opinion.