A Day of Rest is Clarified –
By Kim Silvers, SPHR-CA, SHRM-SCP
California employers who have employees working beyond a regular five-day schedule will be happy to see the California Supreme Court’s recent ruling in Mendoza v. Nordstrom. Although Nordstrom may have felt like it “moved heaven and earth” to finalize this case law, it’s a positive ruling for employers.
The premise of the lawsuit from two employees at Nordstrom was around an interpretation of how to define the California Labor Code sections 551 and 552. Section 551 notes that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Section 552 prohibits employers from “causing their employees to work more than six days in seven.” Further, section 556 of the CA Labor Code allows employers to make an exception to the one day of rest in seven “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”
There were three primary issues on the court’s desk:
- 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?
The court determined: 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.
In essence, the seven-day period CA employers must denote as the workweek for payroll and overtime purposes is the period to review for the day of rest requirement. It is not a rolling seven-day period. For example, an employee on a predesignated seven-day workweek, say, Sunday through Saturday, may work 12 consecutive days, but there is no day of rest required. This is because the schedule cuts across two pay periods, e.g., Monday to the Friday of the following pay period (such as July 10 – 21, 2017). However, if the employee works seven consecutive days in the workweek (Sunday through Saturday in the example workweek above) then a day of rest may be required and/or overtime may be due to the non-exempt employee. See below for more.
- 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 court determined: 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.
The court did not address the situation where the employee works more than six hours on one or two days in the workweek, but the total hours are fewer than 30 in the week.
- 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?
The court determined: 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.
We encourage employers to make it clear and in writing that an employee who volunteers to work a seventh consecutive day in a workweek has done so at his/her own choice. Get the employee’s offer to work in writing! We offer a sample waiver for this in our HR Library for our clients.
Employers are permitted to average the days of rest over a calendar month. Section 554 of the Labor Code notes “Nothing in this chapter shall be construed to prevent an accumulation of days of rest when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”
Keep in mind that the day of rest laws apply to exempt and non-exempt employees. However, overtime payment applies to non-exempt employees who do work seven consecutive days in the workweek. The first eight hours worked on the seventh workday are paid at 1.5 times the regular rate of pay, and 2.0 times the regular rate of pay for hours worked beyond eight on the seventh consecutive workday in the workweek.