On May 8, 2017, in Mendoza v. Nordstrom Inc., the California Supreme Court clarified California’s 80-year-old laws entitling employees to a “day of rest” and generally prohibiting employers from “causing” employees to work “more than six days in seven.”

California Labor Code Sections 551 and 552 require that employers give their employees “one day’s rest” in seven, and prohibit employers from “causing” their employees to work more than six days in seven. Labor Code Section 556 provides an exception to these “day of rest” requirements “when the total hours of employment do not exceed 30 hours in any week or six hours in any day thereof.” But despite these laws being around for 80 years, few courts have construed their meaning, leading to uncertainty.

In Mendoza, two former retail employees — one who worked as a sales associate and one who worked as a sales associate and barista — sued Nordstrom in federal court for civil penalties for violating their right to a “day of rest” because each worked more than six days in a row, and, on at least some of the seventh consecutive days each worked, the employee’s shift exceeded six hours.

Following a bench trial, the district court ruled in favor of Nordstrom. Specifically, it ruled that: (1) Section 551 guarantees one day of rest on a “rolling” basis for any period of seven consecutive days, rather than an employer-established seven-day workweek; (2) although the employees each worked more than seven consecutive days on a rolling basis, their work fell within the Section 556 exception because each always worked at least one shift of six hours or less during the seven-day periods in question; and (3) Nordstrom did not “cause” either plaintiff to work more than six consecutive days because it did not force or coerce them to work.

The plaintiffs appealed, and, rather than try to resolve the issues itself, the Ninth Circuit asked the California Supreme Court to resolve three questions:

  1. Is the “day of rest” required by the statutes calculated by the seven-day workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
  2. Does the Section 556 exception 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?
  3. What does it mean for an employer to “cause” an employee to go without a day of rest?

The Supreme Court held that a day of rest is guaranteed for each seven-day employer-established workweek, not on a “rolling” seven-day period basis. Thus, periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited. However, the court cautioned that “if at one time an employee works every day of a given week, at another time shortly before or after she must be permitted multiple days of rest in a week to compensate, and on balance must average no less than one day’s rest for every seven.” In other words, rest days “need not fall on every seventh day and can be spaced out differently in a calendar month, so long as the number of rest days received by the employee amounts to the number of calendar days divided by seven.”

Next, after a lengthy examination of the legislative history and rules of grammar and syntax, the court held that the Section 556 exception applies only when an employee works no more than 30 hours in the workweek and no more than six hours on each day of the workweek.

Finally, with respect to what it means for an employer to “cause” an employee to go without a day of rest, the court found that the defendant’s interpretation was too lenient and the plaintiffs’ interpretation was too strict. Instead, the court fell in the middle and explained that “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. 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 other words, employers cannot coerce employees to forgo a day of rest, but they will not face liability if an employee, who is fully apprised of the rest-day requirements, nonetheless chooses to work seven days in a row.

This ruling impacts any California employer who has employees who each work seven (or more) consecutive days. But it will be particularly important for employers who have frequent employee call-outs and high turnover (such as in the retail or restaurant industries), which can result in employees being asked to work additional shifts, as happened to the plaintiffs in Mendoza. Such situations could result in an employee being asked to work six, seven or even more days in a row. Crucially, employers should also take heed that these “day of rest” laws do not differentiate between overtime-exempt employees (such as managers) and overtime-eligible, hourly paid employees.

Employers operating in California and other states that have similar “day of rest” laws (including New York, Illinois, and Massachusetts) should carefully review their scheduling policies and practices to assess whether they have employees (exempt and non-exempt) alike working periods of seven consecutive days or more. Employers should also ensure that their employment policies inform employees about their right to a “day of rest” so they may establish that employee decisions to forgo the day of rest are voluntary. Otherwise, it may be a while before employers receive a “day of rest” from wage and hour litigation.