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California Supreme Court Rules in Day-of-Rest Case -- UPDATED

Bryan Little, Farm Employers Labor Service

May 8, 2017; UPDATED: May 24, 2017

The California Supreme Court issued on May 8 its long-awaited advisory opinion in Mendoza v. Nordstrom, a case that had been expected to resolve some questions about day-of-rest requirements in California’s Labor Code. Those requirements have applied to most California employees since 1938 but only began to apply to agricultural employees on Jan. 1. Their recent application to agricultural employees resulted from the repeal of the long-standing provision in Labor Code section 554 that had exempted agricultural employees from those requirements. That repeal occurred due to a provision in 2016 legislation that will phase out the 10-hour workday for agricultural employees starting in 2019 (AB 1066—Gonzalez Fletcher).

The court answered several important questions with respect to day-of-rest requirements:

 

  • A day of rest is guaranteed for each workweek, not each rolling seven-day period. Periods of more than six consecutive days of work that stretch across more than one workweek are not automatically prohibited, nor do they trigger a duty to provide a day of rest.
  • The exception from the day-of-rest requirement for employees who do not work more than 30 hours in a workweek or more than six hours on any one day of that workweek applies only to those employees who do not exceed six hours of work on any day of that workweek. In other words, if on any day of the workweek the employee works more than six hours, the day-of-rest requirements apply to that workweek, subject to whatever other exceptions might apply.
  • By compelling or inducing an employee to work more than six days in seven, an employer “causes” the employee to work, in violation of the prohibition against not causing employees to work more than six days in seven. In contrast, an employer may permit or allow an employee who is fully apprised of the entitlement to a day of rest to choose not to take it and thus to work on seven or more consecutive days.
Related to the exception discussed in the second bullet point above, the Court did not address whether the day-of-rest requirement applies to an employee who works more than six hours on one or more of a workweek but does not work more than 30 hours in that workweek. Thus, the safe approach is not to apply that exception to an employee who works more than either (1) six hours on one or more workdays of a workweek or (2) 30 hours in that workweek—or, of course, both.

UPDATEDFELS Offers Form Acknowledging Employee’s Choice to Work on All Seven Days of a Workweek

FELS has developed a form on which an employee acknowledges the employee is choosing to work more than six days in seven in a workweek. An employee’s choice to do so means the statutory prohibition against “causing” an employee to work more than six days in seven and the provision in Labor Code Section 554 for equivalent days of rest in the same calendar month do not apply.

Labor Code Sections 551 and 552, respectively, entitle an employee to one day’s rest in seven and prohibit an employer from “causing” an employee to work more than six days in seven. Before 2017, these day-of-rest provisions did not cover agricultural employees, but this exemption was repealed by legislation changing state law on overtime for agricultural employees, AB 1066 (Gonzalez Fletcher)(see Day of Rest Requirements Applicable to Ag on 1/1/17, FELS Website, Jan. 5, 2017).

The California Supreme Court recently provided the 9th U.S. Circuit Court of Appeals with an advisory opinion concerning the meaning of “cause” under Labor Code Section 552, which was a consideration in a case pending before the 9th Circuit, Mendoza v. Nordstrom (see California Supreme Court Rules in Day-of-Rest Case, FELS website, May 8, 2017).

Among other important findings, the Mendoza opinion clarified that to “cause” an employee to work, requiring provision of an equivalent day of rest elsewhere in the same calendar month, an employer must either “compel” or “induce” an employee to work on more than six days of a workweek. In contrast, an employer may permit or allow an employee who is fully aware of the legal entitlement of a day of rest to choose not to take it and work on seven or more consecutive days.

To help establish that an employee is fully aware of his right to a day of rest but has instead freely chosen to forgo it, the FELS acknowledgment form provides a tool for employers and employees to clarify the compliance situation surrounding rest days. An employee should execute this acknowledgment each time the employee chooses to work more than six days in seven. While the law does not require that an employee sign such a form, a properly executed acknowledgement on each occasion of seventh-day work will provide the employer with the greatest protection and ability to establish the employee was both aware of the right not to work more than six days in seven and that the employee freely chose to work on all seven days of a workweek.

You can find a copy of this form at this link.