Yesterday, on May 8, 2017, the California Supreme Court issued a long-awaited decision in Mendoza v. Nordstrom, Inc., which had been pending before the state’s highest court for more than two years. The decision clarifies some of the “day of rest” rules found in Labor Code sections 551 and 552. SHLC posted a blog about the Mendoza case in April 2015, which can be found here.
Although the day of rest statutes have existed in some form or fashion for more than 100 years, until now, they have largely avoided judicial interpretation. Yesterday’s decision addresses whether the day of rest must be provided each workweek or on a “rolling basis” for any seven (7) consecutive days, and whether an employee may choose to work on the seventh day, in effect, waiving his or her right to a day of rest. It also examined an exception found in Labor Code section 556 when employees work limited hours during the workweek.
In reaching a decision on these questions, the Court acknowledged that the language of the statute was “manifestly ambiguous” and subject to differing meanings. To reconcile this issue, the Court looked at the language and history of the Wage Orders, which in part implement and explain the Labor Code statutes, and attempted to harmonize the rules. With this regulatory backdrop, the Court ruled as follows:
- One day of rest must be provided in each employer-designated workweek;
- An employee may choose to work seven (7) days in a workweek, but an employer cannot induce an employee to do so; and
- The Section 556 exception allows an employer to require an employee to work seven (7) days in a workweek, only when the employee works fewer than 30 total weekly hours and fewer than six (6) hours in each day of that week.
The Mendoza decision effectively permits employers to require employees to work up to 12 consecutive days by arranging at least one day off in each workweek. As a reminder, “workweek” is defined in the Labor Code and Wage Orders as “any seven consecutive days, starting with the same calendar day each week” and it must be “fixed and regularly recurring.” Employers have some discretion in establishing the workweek; however, it cannot be designated for the purpose of evading seventh day overtime premium pay.
The Court’s holding also permits employees to waive their day of rest if they are fully informed and not pressured to do so. On this latter point, the Court stated:[A]n 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 forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.
The Court also explains that paying mandated overtime for work on the seventh day of the workweek is not an inducement; rather it is simply compliance with applicable law.
Advice for Employers
Employers who choose to permit their employees to work seven days in a workweek should document that employees voluntarily chose to work. Employers should consider using a waiver or acknowledgment form for employees to complete 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. There should be no discipline or retaliation against employees who refuse to sign such a form. Employers should also be aware of the seventh day overtime standard and properly pay employees for work on the seventh day.
Day of rest rules, along with other new and developing employment law issues, will be discussed at SHLC’s Mid-Year Legal Update for California Employers, held via webinar on June 8, 2017 at 12pm to 1pm (PT). For more information and registration for the event, visit: https://suttonhague.com/events/.