On May 8, 2017, the California Supreme Court clarified the proper interpretation of the ”day of rest” requirements, set forth in the California Labor Code. The Court’s rulings in the case provide many California employers with more flexibility in scheduling employees for work, particularly in the retail and hospitality industries.

In the subject case, the plaintiffs were former sales employees of a national retailer, and had worked in different California store locations. The employees claimed that the employer had violated California’s “day of rest” statutes (Labor Code sections 551 and 552) because the employees had worked more than six consecutive days without a day off from work on the seventh day. During these consecutive periods worked, the employees’ hours of work per day varied during any given workweek (Sunday through Saturday); some days, they worked more than six hours, and some days they worked less than six hours.

The first issue for decision before the Court involved the proper interpretation of Labor Code sections 551 and 552. Labor Code section 551 states: [e]very person employed in any occupation of labor is entitled to one day's rest therefrom in seven.” Labor Code section 552 states: “no employer may cause his employees to work more than six days in seven.” The plaintiffs argued that Labor Code sections 551 and 552 required the employer to provide a day of rest after any six consecutive days of work, regardless of when the workweek started and ended. In other words, the protection applies on a rolling basis. In contrast, the employer contended that the statutes permitted scheduling employees to work more than six consecutive days so long as those consecutive work days spilled over to the next, separate workweek. (A “workweek” is defined as any seven consecutive days, starting with the same calendar day each week, and is a fixed, regularly recurring period of 168 hours, and seven (7) regularly occurring days, e.g., 12:00 AM- Sunday through 11:59 PM-Saturday.)

The Court agreed with the employer’s interpretation, and held that the “day of rest is guaranteed for each workweek” and that “[p]eriods of work that stretch across more than one workweek are not per se prohibited.” In other words, an employer may require an employee to work more than six consecutive days, without the seventh day off for rest, if the consecutive work days (in excess of six) fall over two workweeks.

The second issue the Court considered involved the proper interpretation of Labor Code section 556, which exempts employers from the application of day of rest requirement in Labor Code sections 551 and 552 “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” The employer contended that, under Labor Code Section 556, the day of rest protections set forth in Labor Code sections 551 and 552 do not apply to employees who: (1) work 30 hours or less in a workweek; and (2) work six or less hours in any one of the work-days in that workweek. In contrast, the employees contended that, in order for the employer to enjoy the exemption provided under Labor Code Section 556, the employee must not only work no more than 30 hours in the workweek, but also may not work more than six hours in all work-days, during that workweek. The Court agreed with the employees, and held that the Labor Code Section 556 exemption only applies if the employee’s hours of work are six hours or less for all work-days during that workweek.

The third and final issue for resolution by the Court involved the interpretation of the meaning of the term “cause” under Labor Code Section 552 (“no employer may cause his employees to work more than six days in seven”). The Court posed the issue as follows: “What does it mean for an employer to ‘cause’ an employee to go without a day of rest (§552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?”

With regard to this third issue, the plaintiffs contended that whenever an employer “allows, suffers, or permits” an employee to work a seventh day, it has “caused” the employee to work. The employer contended that, unless the employer “requires, forces or coerces seventh-day work,” it has not “caused” the employee to work. The Court rejected both the employees and employer’s asserted meaning of “caused” to work. Rather, the Court held that it was the “employer’s obligation 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 further stated that an “employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because the employee chooses to work a seventh day.”

Takeaways: Employer’s Flexibility and Best Practices

The Court’s decision provides clear guidance to employers who require employees to work more than six consecutive days. For example, employers who need to schedule employees to work more than six consecutive days can do so, if the days are staggered over two workweeks. Second, if an employer seeks to lawfully require an employee to work seven consecutive days in a workweek and not trigger daily and weekly overtime premiums, it can limit an employee’s hours of work to no more than 30 hours in the workweek, and no more than six hours in all work-days (e.g., seven four- hour shifts in a workweek). Third, if the employer seeks the flexibility of permitting employees to work more than six consecutive days in a workweek (potentially incurring daily or weekly overtime), the employer should consider presenting employees with a form for her/his signature, which states that the employee understands s/he is entitled to a day of rest on the date in question, that the employee is voluntarily requesting to work the extra day with no requirement by the employer to do so, and that there will be no reprisal by the employer should the employee elect to take his/her day of rest, which is a protected entitlement. Finally, employers may also wish to provide training to supervisors (or others responsible for scheduling work hours) regarding the day of rest requirements, lawful communications with employees concerning working on a seventh day, and scheduling options to minimize risk to the employer.