The Ninth Circuit Court of Appeals has asked the California Supreme Court to clarify three questions pertaining to California’s little known, and very rarely litigated, laws regarding a day of rest every seven days. The case is Mendoza v. Nordstrom. The California Supreme Court’s clarification could result in a new-found focus on these laws, and it is worth it for California employers to follow the issues raised in this case. Below are five issues employers ought to pay attention to:

1. Is the requirement to provide one day of rest every seven days based on a rolling seven days or on the workweek?
The first issue the Appellate Court seeks clarification on is California Labor Code section 551. This section states that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Section 552 further states that “[n]o employer of labor shall cause his employees to work more than six days in seven.” The issue is whether these Labor Code sections apply to seven consecutive days on a rolling basis or only apply to each workweek. The difference in how the days are counted can have a significant impact. The court provides the following example to illustrate its point:

 

 

Sun.

Mon.

Tues.

Wed.

Thurs.

Fri.

Sat.

Week 1

Off

Work

Work

Work

Work

Work

Work

Week 2

Work

Work

Work

Work

Work

Work

Off

If the workweek begins each Sunday, if the statute is read to apply to consecutive seven days, then the employer in this example has violated sections 551 and 552. Alternatively, if the statute applies to each workweek, then the employer has not violated these provisions. The appellate court could not find any support to both plausible interpretations of these Labor Code sections, and therefore is asking the California Supreme Court to clarify.

2. When is an employer exempt from the seven day rule?
The second issue the Appellate Court seeks clarification on pertains to California Labor Code section 556. The section exempts employers from the day-of-rest requirement “when the total hours [worked by an employee] do not exceed 30 hours in any week or six hours in any one day thereof.” The court provides the following example of hours worked each day: 8-9-5-8-8-8-9. Would this work schedule exempt the employer from providing a day of rest on the seventh day? The court explained that the interpretation of the word “any” in section 556 could easily mean one (as in “Pick any card from the deck.”) or it could mean all (as in “Any child knows the answer to that simple question.”).

3. What does it mean to cause employees to work seven days?
The next question the Appellate Court proposed to the California Supreme Court is for clarification of Labor Code section 552. This section provides that employers may not “cause” its employees to work more than six days in seven. The court asks the Supreme Court to clarify the term “cause.” The court states:
To “cause” can mean to “induce,” so is it enough for an employer to encourage or reward an employee who agrees to work additional consecutive days? In another context, causation is defined in terms of the “natural and probable consequence” of one’s action. Is it enough for an employer to permit employees to trade shifts voluntarily, when a natural and probable consequence may be that an employee works more than the day-of-rest statutes allow?

4. Definition of workday.
While this case did not address the issue of overtime, it is a good reminder to review the definition of workday and workweek under California law.
The DLSE defines workday as:

A workday is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day. The beginning of an employee’s workday need not coincide with the beginning of that employee’s shift, and an employer may establish different workdays for different shifts. However, once a workday is established it may be changed only if the change is intended to be permanent and the change is not designed to evade overtime obligations.

5. Definition of workweek.
The DLSE defines the workweek as:

Any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. "Workweek" is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods. An employer may establish different workweeks for different employees, but once an employee’s workweek is established, it remains fixed regardless of his or her working schedule. An employee’s workweek may be changed only if the change is intended to be permanent and is not designed to evade the employer’s overtime obligation.

If an employer does not set a designated workweek, the DLSE will presume the employer uses the calendar week, from 12:01 a.m. Sunday to midnight Saturday, with each workday ending at midnight.