California Supreme Court Answers Unsettled Questions Regarding California’s “Day of Rest” Requirements

May 12, 2017

By Zach P. Hutton, George W. Abele, Leslie L. Abbott & MiRi Song

On May 8, 2017, the California Supreme Court resolved three unsettled issues pertaining to the state’s “day of rest requirements,” responding to questions it certified from the Ninth Circuit.

By way of background, California Labor Code sections 551 and 552 require that employees be permitted to take one day of rest every seven days.[1] The Labor Code provides exceptions for:

Emergencies, work performed in the protection of life or property from loss or destruction, and common carriers engaged in the movement of trains. Cal. Lab. Code § 554(a).[2]
“Accumulation of days of rest when the nature of the employment reasonably requires that the employee work seven or more consecutive days,” so long as in each calendar month the employee is entitled to take the equivalent of one day’s rest in seven. Id.
Instances when the employee’s “total hours of employment do not exceed 30 hours in any week or six hours in any one day.” Cal. Lab. Code § 556.

The remedy for violations of these requirements is a civil penalty of up to $100 per employee per pay period under Labor Code section 558.

In a recent decision,[3] the California Supreme Court held that:

A day of rest is guaranteed for each “workweek,” not every rolling period of seven consecutive days.
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.
An employer “causes” its employee to go without a day of rest, in violation of Labor Code section 552, when it induces an employee to forgo a day of 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.

We describe below the Court’s holding and the steps that employers should take to review their policies and practices for compliance with this new decision.

CASE SUMMARY

The lawsuit originated in federal district court, where the trial court dismissed the plaintiffs’ day of rest claims after a bench trial, and concluded that: (1) Labor Code section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days; but (2) under Labor Code section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period; and (3) the employer did not “cause” plaintiffs to work more than six consecutive days because it did not force or coerce them to do so.

After an appeal to the Ninth Circuit, the California Supreme Court accepted the Ninth Circuit’s request to decide these questions. The Court issued three key holdings.

I. Day of Rest Protections Apply to Each “Workweek,” Not Any Seven Consecutive “Rolling” Days.

The plaintiffs argued successfully in the district court that the day of rest provisions apply on an ongoing day-by-day basis, so that any employee who has worked the preceding six days in a row is presumptively entitled to rest on the next day regardless of the employer’s “workweek” designation.[4] The California Supreme Court, however, rejected that interpretation.

The Court described the statutory text as “manifestly” ambiguous because neither Labor Code section 551 nor 552 uses the word “week,” but the seven day measurement period tracks one day of rest each week. After a discussion of relevant Industrial Welfare Commission Wage Orders, their history, and the statutory context, the Court concluded that Labor Code sections 551 and 552, “fairly read in light of all the available evidence, are most naturally read to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.” In other words, “the Legislature intended to ensure employees . . . a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.”

II. The Exemption for Employees Who Work Shifts of Six Hours or Less Applies Only When the Employee Never Exceeds Six Hours of Work Per Day During the Workweek.

The Court also held that the day of rest exemption for employees who work shifts of six hours or less applies only if the employee works no more than six hours each and every day of the given week (i.e., if an employee works more than six hours one day and less than six hours every other day, the exemption will not apply).

Labor Code section 556 refers to employees whose “total hours of employment do not exceed 30 hours in any week or six hours in any one day.” Importantly, the Court declined to address whether the exemption should be read conjunctively (meaning the exemption only applies if the employee works six hours or less every work day and thirty hours or less in the workweek) or disjunctively (meaning it applies if an employee works either six hours or less every work day or thirty or fewer hours per week). The Court observed in dictum that a disjunctive reading would be “less protective of employee welfare,” but did not resolve the issue. The statutory text—in particular, the use of the conjunction “or” instead of “and”—arguably suggests that the requirements are disjunctive. On the other hand, the Industrial Welfare Commission Wage Orders use the term “and.” In the absence of definitive authority, risk-averse employers may want to treat the exemption as applying only if both the daily and weekly hour standards are satisfied.

III. No Violation Occurs If an Employee Voluntarily Decides to Work a Seventh Day, as Long as the Employee Was Apprised of the Entitlement to a Day of Rest and the Employer Maintained “Absolute Neutrality.”

The Court also resolved what it means to “cause” an employee to forgo his or her statutory day of rest. The employees argued that whenever an employer allows, suffers, or permits an employee to work a seventh day, it has caused the employee to do so, resulting in a violation. The employer argued that unless the employer requires, forces, or coerces work on the seventh day, it has not caused the employee to work.

The Court, applying a dictionary definition, concluded:

[A]n employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter 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.

In a footnote, the Court clarified that the “payment of overtime is not an impermissible employer inducement; it is, instead, simply compliance with a federal- and state-imposed legal obligation.” However, an “employer cannot affirmatively seek to motivate an employee’s forsaking rest . . . .”

RECOMMENDATIONS FOR EMPLOYERS

In light of the Court’s decision, all California employers should:

Consider whether to update their employment policies to address day of rest requirements, especially in light of the Court’s holding that employers who “apprise employees of their entitlement to a day of rest and thereafter maintain absolute neutrality” cannot be held liable for instances where employees voluntarily elect to work;
Evaluate their scheduling practices to follow the Court’s interpretation of the day of rest requirements; and
Decide whether to treat the six-hour daily and thirty-hour weekly thresholds in Labor Code section 556 as “disjunctive” or “conjunctive,” given the Court’s decision not to address that issue.

[1] Labor Code section 551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” and section 552 prohibits employers from “causing their employees to work more than six days in seven.”

[2] The statute also authorizes the Division of Labor Standards Enforcement (“DLSE”) to exempt any employer or employees from the provisions of Labor Code sections 551 and 552 to avoid “hardship.” Cal. Lab. Code § 554(b).

[3] See Mendoza v. Nordstrom, Inc., No. S224611. Published opinion available at http://www.courts.ca.gov/opinions/documents/S224611.PDF.

[4] The “workweek” used as the unit of measurement may not coincide with the calendar week if an employer has designated a different workweek for payroll purposes. Labor Code section 500(b) defines a “workweek” as a “fixed and regularly recurring period of 168 hours” that starts “with the same calendar day each week.”

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