Metropolitan News-Enterprise


Tuesday, May 9, 2017


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S.C. Clarifies Employers’ Duties Under ‘Day of Rest’ Statutes




A California worker is entitled to at least one day off each week, but may be required to work seven consecutive days across two workweeks and may voluntarily work seven days in the same week, the state Supreme Court ruled yesterday.     

The unanimous decision came in response to a Ninth U.S. Circuit Court of Appeals request that the justices answer certified questions of California law that arose in a Private Attorney General Act suit against the Nordstrom retail chain.

The plaintiffs allege that Nordstrom violated several Labor Code provisions, including §551, which is more than 120 years old and entitles every worker to “one day’s rest…in seven,” §552, saying no employer “shall cause his employees to work more than six days in seven,” and §556, exempting an employer from §§551 and 552 if the employee works six hours per day or less.

 Nordstrom was sued in state court by two workers who alleged that they had, in response to requests by managers, worked more than six consecutive days on multiple occasions, and that they had worked days of more than six hours during those periods. Nordstrom removed the case to the U.S. District Court for the Central District of California.

PAGA Claim

The suit was filed as a putative class action and included a PAGA claim regarding the day-of-rest statutes. After District Judge Cormac J. Carney granted summary judgment on other claims, the plaintiffs withdrew their motion to certify a class, since it was superfluous to the resolution of the PAGA claim.

After a bench trial, Carney ruled that §551 applies to any seven-day period, including one that rolls across two workweeks; that the §556 exemption applies whenever an employee works six hours or less on any day out of the seven; and that an employer does not “cause” an employee to work more than six days out of seven if the employee does so without coercion.

The Ninth Circuit certified those issues to the Supreme Court, which yesterday agreed with Carney only as to the last one.

Justice’s Opinion

Justice Kathryn M. Werdegar, in her opinion for the court, said the statutory text was “manifestly ambiguous,” and that the legislative history of the provisions is limited. But a guide to the Legislature’s thinking years ago, she said, can be found in Industrial Welfare Commission wage orders dating back nearly 100 years, beginning with the establishment of the six-day week for women and children in the mercantile industry.

A later wage order created a presumption in favor of Sunday as the day of rest for women and children in the absence of a contrary arrangement.

Werdegar wrote:

“We can safely infer the IWC did not intend less day of rest protection for women and children than for the general employee population, and thus that the statutory day of rest protection was understood by the IWC to ensure a weekly day of rest, not a ‘rolling seven’ guarantee.”

Later, she added, it was recognized that employers needed flexibility to require workers to work additional days or hours, so the Legislature and the IWC adopted overtime provisions. And those provisions—such as the current overtime statute, §510, have always applied according to the workweek, not to rolling seven-day periods, Werdegar noted.

She rejected the concern that this could result in workers being required to regularly work 11 days out of 12. She cited §554, which requires that every employee receive, over the course of a month, “days of rest equivalent to one day’s rest in seven.”

She went on, however, to conclude that the plaintiffs were correct as to §556. The proper interpretation of that section, she said, is that if an employee works more than six hours on at least one day of the workweek, he or she is entitled to a day off that week.

Besides the six-hour rule, she noted, the section provides that an employee need not be given a day of rest in any week that he or she works less than 30 hours.

Six-Day Rule

If the six-day rule is interpreted the way Nordstrom argues, the justice noted, the 30-hour rule becomes superfluous. The plaintiffs’ interpretation, which gives effect to both rules, “must be the one the Legislature intended,” Werdegar wrote, and is consistent with wage orders and Department of Labor Standards Enforcement guidance.

But the justice rejected the plaintiffs’ argument as to the last certified question, dealing with when an employer violates the statutes by “caus[ing]” a worker to work seven days in a week. An employer will not incur liability for penalties, she said, merely because it “allows, suffers, or permits” an employee to work a seventh day.

“Rather, 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,” she said. “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 case of Mendoza v. Nordstrom, Inc., 17 S.O.S. 2372, was argued in the Supreme Court by K.L. Myles of Knapp, Peterson & Clarke and R. Craig Clark of Clark Law Group for the plaintiffs, and by Julie A. Dunne of Littler Mendelson for Nordstrom.


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