The California Supreme Court earlier today provided guidance regarding California’s statutory prohibition on “caus[ing] . . . employees to work more than six days in seven.” In its decision in Mendoza v. Nordstrom, Inc. the Court primarily addressed two questions, both of which it decided in favor of employers.
Question 1: Is the California Labor Code’s requirement of “one day’s rest in seven” applied based on the employer-defined workweek, or does it apply on a rolling basis to any seven-consecutive day period?
The court held that the rule only applies to the employer-defined workweek, not on a rolling seven-day basis. Accordingly, an employer can maintain a schedule that requires employees to work more than six consecutive days as long as they provide one rest day in each workweek. For example, if an employer’s workweek runs from Sunday through Saturday (a common workweek definition, although employers are free to set different workweeks), the following schedule is permissible:
First Workweek: Rest on Sunday; Work Monday through Saturday
Second Workweek: Work Sunday through Friday; Rest on Saturday
Question 2: Can employees force or coerce employees to go without a day of rest in a workweek? Relatedly, can employees choose to forgo their day of rest?
The Court held that employers generally cannot “induce” an employee to forgo his or her day of rest. 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 of rest. As the court puts it – employers are to maintain “absolute neutrality” as to whether employees exercise their right to a day of rest, but are not liable simply because an employee chooses to work a seventh day in the workweek.
California’s Labor Code does allow employers to require employees to work all seven days in a defined workweek in limited circumstances, such as cases of emergency; to protect life or property from loss or destruction; or where agreed upon in a collective bargaining agreement. Additionally, when the nature of the employment reasonably requires that the employee work seven or more consecutive days in workweek, the employer may require such work, if the employee receives at least an average of one day’s rest per seven days over the course of the calendar month. Finally, in circumstances where the employee works a seventh day in the workweek, the employer will be required to pay time-and-one-half for the first eight hours worked, and double time for any additional hours.
What This Means:
The California Supreme Court has confirmed that employees have the flexibility to schedule employees to work more than six consecutive days. However, if employees are permitted to work all seven days within the employer-defined workweek, employers should consider implementing processes to (i) provide clear notice to employees of their entitlement to a rest day; and (ii) secure documentation to demonstrate that employees are independently choosing to work the seventh days, and that they are not doing so as a result of employer inducement.
Source: Paul, Plevin, Sullivan & Connaughton
Employment Law E-Update May 8, 2017