Stay tuned for a potential new interpretation of labor law codes 551 & 552 (“one day’s rest there from in seven”) that could affect your business.
Three California labor questions regarding these labor codes have been certified for review by the California Supreme Court, based on a 9th Circuit court ruling in Mendoza v. Nordstrom (9th Cir. 12-57130, 12-57144 2/19/15)
Note: Even if your employees volunteer to work seven or more continuous day, you should discontinue that practice until this appeal is decided.
Mendoza sued Nordstrom, alleging that it had violated California Labor Code sections 551 and 552 by failing to provide him with one day’s rest in seven on three occasions. He brought the action in California state court; Nordstrom removed to federal court. Mendoza also pleaded other claims that are not at issue in the present appeal. He filed his complaint on behalf of a class of similarly situated hourly, non-exempt Nordstrom employees in California, and he brought the relevant claim pursuant to the California’s Labor Code Private Attorneys General Act of 2004. See Cal. Lab. Code §§ 2698–2699.5. Gordon’s complaint in intervention alleged the same causes of action as those in Mendoza’s complaint.
With respect to the day-of-rest claims, the district court held a bench trial. The district court then ruled: (1) the day of-rest statute, California Labor Code section 551, applies on a rolling basis to any consecutive seven-day period, rather than by the workweek; (2) but California Labor Code section 556 exempts Nordstrom from that requirement, because each plaintiff worked less than six hours on at least one day in the consecutive seven days of work; and (3) even if the exemption did not apply, Nordstrom did not “cause” Mendoza or Gordon to work more than seven consecutive days, within the meaning of California Labor Code section 552, because there was no coercion; Plaintiffs waived their rights under California Labor Code section 551 by accepting additional shifts when they were offered.
The court dismissed the plaintiff’s action and a timely appeal to the Supreme Court
The court will decide three questions:
(A) California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest there from in seven.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven day period?
(B) California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” (Emphasis added.) Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?
(C) California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?