California Supreme Court Issues “Day-of-Rest” Decision
Earlier this month the California Supreme Court issued it’s decision in the case of Mendoza v. Nordstrom. The case was sent by the 9th Circuit Court of Appeals to the California Supreme Court requesting that the California Supreme Court decide three distinct issues some of which are pertinent to AB 1066.
The first issue involved the Court’s interpretation of Labor Code Section 552, as to whether the word “cause” means “force, coerce, pressure, schedule, encourage, reward, permit, or something else”.
The second issue raised in the litigation is whether the seventh consecutive day of work refers to the seventh day within the same workweek or merely seven consecutive days on a “rolling basis”.
The third issue addressed Labor Code Section 556 which exempts employers from the duty to provide a day of rest “when the total hours of employment do not exceed thirty (30) hours in any week or six hours in any one day thereof”. The Court considered whether that exemption applies 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 of each day of the week?
In the 9th Circuit’s previous decision, it noted “The consequences of any interpretation of the day-of-rest statutes will have profound legal, economic and practical consequences for employers and employees throughout the State of California and will govern the outcome of many disputes in both State and Federal Courts in the ninth Circuit”.
With that background, the Court made the following ruling:
- A day of rest is guaranteed for each workweek. 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 any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exemptions might apply.
- An employer “causes” its employees to go without a day of rest when it induces the employee to forego rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee fully apprised of the entitlement to rest, independently to choose not to take a day rest.
This decision is a welcomed one to the agricultural industry, as well as all other California employers. The agricultural industry’s use of a “voluntary work” form since January 1, 2017, to work on the seventh consecutive workday in the [same] workweek is supported by the Court’s decision.
With respect to the meaning of work “cause” in Labor Code Section 552, that section provides that an employer may not “cause his employees to work more than six days in seven”. The plaintiffs contended that whenever an employer allows, suffers, or permits an employee to work on a seventh day, it has “caused” the employee to do so. On the hand, Nordstrom argued that unless the employer requires, forces, or coerces seventh-day work, it has not caused the employee to work. The Court concluded that neither definition was sufficient.
The Supreme Court explained that “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. An employer may not encourage its employees to forego rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work on a seventh day”.
The Court further stated that “An employer cannot affirmatively seek to motivate an employee’s forsaking rest, but neither need it act to prevent such forsaking.” The Court also noted that the payment of overtime is not an impermissible employer inducement; it is, instead, simply compliance with Federal and State-imposed legal obligation.
In the following days, weeks and months, there will be numerous legal articles, seminars, law review articles written on this decision. In the short-run, the Court made it clear in its interpretation of Labor Code Section 552 the following requirements to allow employees to voluntarily work on the seventh day in the workweek:
- The employer will have an affirmative obligation to apprise [inform or tell] employees of their right to take a day of rest; and
- Thereafter, the employer must maintain absolute neutrality as to the exercise of that right. [In other words, an employer may not encourage its employees to forego a rest day or conceal the entitlement to rest.]
With respect the Court’s examination of Labor Code Section 551 and 552 being applied to a “workweek” or “any consecutive seven day period”, the Court noted that the Legislation was intended to ensure employees at least one day of rest during each week, rather than one day in every seven on a “rolling basis”. Examining Legislative intent, the Court noted that object of the statute should be given liberal effect to promote the general object sought to be accomplished. Therefore, the Legislature intended to ensure employees, as conducive to their health and well being, a day of rest each week, not to prevent them from ever working more than six consecutive days at one time.
Based on the foregoing, if after an employee has been advised of his/her right to a “day off” on the 7th consecutive day in the workweek and the employee voluntarily chooses to work on the seventh consecutive workday in the workweek, there is no violation of Sections 551 and 552, and no additional “day off” is required per Section 554(a). [See attached forms]. Secondly, in the absence of a “voluntary election”, if there is a situation where work on the seventh consecutive workday is required under Section 554(a) because of the “nature of the work”, a commensurate number of “days off” will be required for each 7th consecutive day worked in the same month. Also in Section 554(b), the Chief of the DLSE may, in her discretion, grant an exemption to the 7th day off requirement when it can be shown that a “hardship” will result to any employer or employee. Lastly, there is an additional exemption to the 7th day off requirement under Section 556, where an employee has not worked a total of more than thirty hours of employment with no more than six hours worked each day.
The previous “Volunteer-Work on the 7th Consecutive Day of Workweek” form (in English and Spanish) has been revised to ensure that it is compliant with the Supreme Court’s decision in Mendoza v. Nordstrom, Inc.
Source: AgSafe | 2017 © Copyright Payroll Masters
Payroll Masters is not a licensed insurance broker or agent and does not provide professional or legal advice. This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please contact your employment attorney in connection with any fact-specific situation in which you intend to take significant employment action. Readers agree that they will hold Payroll Masters in indemnity and Payroll Masters assumes no liability. Payroll Masters is not engaged in rendering legal or accounting services. Therefore, Payroll Masters assumes no responsibility for claims arising from the use or implementation of the above information.