Legal Alerts May 23, 2017

California’s Ambiguous Day of Rest Requirements Clarified by State Supreme Court

Employers Need to Schedule Accordingly

California’s Ambiguous Day of Rest Requirements Clarified by State Supreme Court

California employees are generally required to be provided one day’s rest in a seven-day work week. (See, Cal. Labor Code sections 551, 552 and 556.) For years, there has been confusion over what it means for employers to “cause” an employee to work six days in seven, what it means to provide “one day’s rest in seven,” and when the day-of-rest requirement is excused. The California Supreme Court earlier this month in Mendoza v. Nordstrom addressed three day-of-rest issues in response to a certified question from the U.S. Ninth Circuit Court of Appeals:

  1. Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven day period?
  2. Does the rest day requirement apply 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 in each day of the week?
  3. What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

As to the first question, the Court held that the seven-day work period designated by the employer controls, and that the mandated one day of rest per every seven does not apply on a rolling basis.
As to the second question, the Court found that if an employee works more than six hours on any given day of the workweek, the day of rest provision in Labor Code section 551 applies. Unfortunately, the Court did not clarify what happens if an employee does not work more than 30 hours per week.
As to the final question, the Court held that an employer “causes” an employee to work more than six days in seven if it “motivates or induces” the employee to do so. However, an employer is not liable if it merely permits the employee to work more than six days in seven.
What Does This Mean For Employers?
Based on the distinctions provided by the court in Mendoza, employers should not affirmatively schedule or require their employees to work more than six days in seven, but may give them the opportunity to do so — as long as the employee knows that they are entitled to take one day of rest and will not be penalized (or paid) doing so. Therefore, it is important that employers inform employees of their right to take legally-mandated rest days. Establishing a written policy and receiving signed confirmation from employees will help employers avoid and defend potential day-of-rest claims.
Additionally, employers need to be vigilant in their recordkeeping to ensure compliance with the parameters set out by the court in Mendoza. It is important for employers to monitor when employees near the six-day, 30-hour threshold as established by the Court. Similarly, employers should have a system in place for recording when employees were entitled to a rest day, whether the employee took it or not, and if not, documentation that the employee’s choice to work was voluntary. Implementing software or a computer tracking system that monitors employer compliance with these regulations will be an asset in preventing any claims by employees or future litigation.
For information on how this decision may impact your organization and strategies to overcome its challenges, please contact the authors of this Legal Alert listed at the right in the firm’s Labor & Employment practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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