Why it matters

Resolving a contentious issue of California law, the state’s highest court ruled that one day of rest is guaranteed for each defined workweek, although an employer is not forbidden from allowing an employee, fully apprised of his or her entitlement to rest, to independently choose not to take a day off. The issue arose when two employees of Nordstrom claimed the employer required them to work for more than six consecutive days without a day off, in violation of the state’s “day of rest” statute. Following a bench trial, a federal court judge ruled in favor of Nordstrom. The plaintiffs appealed, but uncertain about how to interpret the statute, the U.S. Court of Appeals for the Ninth Circuit certified three questions to the California Supreme Court. Answering the questions, the unanimous court held that a day of rest is guaranteed for each workweek, although periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited. 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, the court added, and if on any one day an employee works more than six hours, a day of rest must be provided during that workweek. Finally, the court ruled an employer “causes” its employees to go without a day of rest when it induces the worker to forgo rest to which he or she is entitled. However, employers may permit an employee to voluntarily choose not to take a day of rest, after being informed of his or her rights under the law.

Detailed discussion

In 2009, Christopher Mendoza filed suit against his former employer, Nordstrom. According to Mendoza, during his tenure as a barista at a Nordstrom espresso bar and as a sales representative in the cosmetics department, the national retailer violated Sections 551 and 552 of the California Labor Code, the so-called day of rest law.

Section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” while Section 552 states that “[n]o employer of labor shall cause his employees to work more than six days in seven.” California Labor Code Section 556 exempts an employer 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.”

Mendoza claimed he worked more than six consecutive days on three occasions, one time working 11 days straight (although working fewer than six hours on two of those days), seven days straight another time (with fewer than six hours on three days) and eight consecutive days on a third occasion (with fewer than six hours on five days). On each of these occasions, Mendoza was not originally scheduled to work more than six consecutive days but did so after being asked by a coworker or supervisor to fill in for another employee.

A second employee, Megan Gordon, joined the suit in April 2011. She worked as a fitting room attendant at a Nordstrom Rack store for more than six consecutive days on one occasion, although on two of those days she worked fewer than six hours.

After a two-day bench trial, a California federal court judge sided with Nordstrom. Gordon and Mendoza appealed to the U.S. Court of Appeals for the Ninth Circuit. A panel of the federal appellate court considered the issue and, finding no controlling California precedent and an ambiguous statutory text, turned to the California Supreme Court for help.

The panel certified three questions to the state’s highest court:

  1. 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?
  2. 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?
  3. 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?

Answering the first question, the court began with the premise that the text of the statutory is “manifestly ambiguous” and the legislative history “sheds limited light.” The court turned to other interpretive sources, including the regulatory and statutory contexts of which the day of rest laws are a part.

For example, the court reviewed the history of the Industrial Welfare Commission Wage Orders, noting that the statutory day of rest protection was understood by the IWC to ensure a weekly day of rest, not a “rolling seven” guarantee, with each iteration of the wage order continuing to make clear that the day of rest guarantee applied on a weekly, rather than rolling, basis. Interpreting Sections 551 and 552 as applying on a weekly rather than rolling basis harmonizes the statutory guarantees with the history of the wage orders, the court wrote.

Further, this interpretation comports with the statutory context, particularly given that the legislature has expressly defined a “week” and a “workweek” as “any seven consecutive days, starting with the same calendar day of each week”—not a rolling period of any seven consecutive days, the court said. The exceptions to the day of rest back this up, as Section 510—which provides consideration in the form of premium pay when circumstances dictate forgoing a day of rest—applies to “the seventh day of work in any one workweek.”

“That is, premium pay is available not on a rolling basis, for any seventh consecutive day of work, but only for employees who must work every day of an employer’s established regularly recurring workweek,” the California Supreme Court said. “The logical inference is that the Legislature views only a seventh day of work during an established workweek as an exception to sections 551 and 552, and intends the day of rest guarantee to apply on a weekly basis.”

The court was not persuaded by the plaintiffs’ argument that this reading of the statute would permit employers to regularly impose schedules in which employees may rest no more than one day in 12. “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, not one for every 12,” the court said.

As for the six-hour-day exception, the court said the elimination of the seventh-day-rest protection applies only to employees who work no more than six hours each and every day of the given week. This reading avoids absurdities that would result from alternative interpretations, the court found, such as if an employer permitted a single day of six hours or less to eliminate seventh-day-rest protection.

Finally, the court turned to the meaning of “cause” in Section 552. The court rejected Nordstrom’s proposal that the term should be understood as limited to a requirement or use of force. “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,” the court explained. “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.”

To read the opinion in Mendoza v. Nordstrom, Inc., click here.