United States: California Supreme Court Settles Unresolved Questions Regarding "Day Of Rest" Requirements For Non-Exempt Employees, Affording Employers More Flexibility And Much Needed Guidance

On May 8, 2017, the California Supreme Court clarified several major points of ambiguity regarding the interpretation of the state's obscure "day of rest" statutes. Those statutes, codified in Labor Code sections 550-558.1, dictate that non-exempt employees are generally entitled to one day's rest in seven and that employers cannot "cause" their employees to work more than six days in seven.

A few important exceptions to this rule exist. First, employers are not required to provide a day of rest to those employees who work 30 or fewer hours "in any week" or no more than six hours "in any one day" of that week. Second, employers are not required to provide a day of rest to employees whose job duties reasonably require them to work seven or more consecutive days and who also receive the functional equivalent of one rest day in seven every calendar month.

The Supreme Court in Mendoza (S224611) specifically tackled the following three unresolved questions with respect to the interpretation of the "day of rest" rule and its exceptions:

  1. Is the day of rest calculated by the employer's workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
  2. Does the exemption for workers employed for six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on every day of the applicable week?
  3. What does it mean for an employer to "cause" an employee to go without a day of rest: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

The underlying lawsuit concerned a putative class action filed by two former employees of a retail chain with stores throughout California. On several occasions, the two employees were asked by a supervisor or a coworker to fill in for another employee, which resulted in the employees working more than six consecutive days. Consequently, they sued the retail chain alleging that the company had failed to provide them with statutorily guaranteed days of rest.

The district court concluded that (1) Section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days; but (2) the guarantee does not apply so long as an employee had at least one shift of six hours or less during the seven-day period; and (3) the retail chain did not "cause" the employees to work more than six consecutive days because it did not force or coerce them to do so. The employees appealed, and the Ninth Circuit requested that the California Supreme Court resolve these unsettled questions.

After a thorough review and discussion of the statutory language, Legislative history, and interactions with the Industrial Welfare Commission ("IWC") Wage Orders, the Court concluded the following:

  1. The day of rest required is calculated by the workweek, not on a 7-day rolling basis;
  2. The six-hour day exemption only applies to those employee who never exceed six hours of work on any day of the workweek; and
  3. An employer does not "cause" an employee to forgo a day of rest when it fully apprises the employee of the entitlement to a day of rest and then remains completely neutral thereafter regarding an employee's exercise of that right.

 1. Labor Code Sections 551 and 552: When is a Day of Rest Required?

The Supreme Court first considered whether employees' entitlement to one day's rest in seven applies on a week-by-week basis (i.e., a fixed seven-day block) or on a rolling basis (i.e., wherein an employee who has worked the preceding six days in a row is presumptively entitled to rest on the next day). 

Both the Legislature and the IWC Wage Orders define a "workweek" as "any seven consecutive days, starting with the same calendar day each week," such as Sunday to Saturday, and not a rolling period of any seven consecutive days. The Court also noted that premium pay for overtime work performed on the seventh consecutive day is not available on a rolling basis, but only for employees who must work every day of an employer's established workweek.

Reviewing the available evidence, including the Legislature's intent to ensure the health and well-being of employees, the Court concluded that the statutes are most logically read to ensure employees receive at least one day of rest during each workweek, rather than one day in every seven on a rolling basis. 

2. Labor Code Section 556: Application of the Six-Hour Day Exception

The Supreme Court noted that the exception for employees who do not work in excess of "six hours in any one day" of a one-week period is ambiguous. The retail chain argued, and the lower court agreed, that so long as an employee is given at least one day with no more than six hours' work during a one-week period, the employee could be required to work all seven days without any day of rest. However, the Court sided with the employees, concluding that the exemption only applies if every daily shift during the workweek is six hours or less. So, if an employee works more than six hours on any one day, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply. 

This interpretation ensures that only employees who are asked to work no more than six hours on any one day and no more than 30 hours total per workweek may be given a schedule for the workweek with seven days of work. Otherwise, an employee could be required to work six straight eight-hour days followed by a single six-hour day, without end.      

3. Labor Code Section 552: What Does it Mean to "Cause" an Employee to Forgo Rest?

The plaintiffs argued that whenever an employer "allows, suffers, or permits" an employee to work a seventh day, it has "caused" the employee to do so. The retail chain, however, argued that unless the employer "requires, forced, or coerces" an employee to work on a seventh day, it has not caused him or her to work. 

The Supreme Court found both of these definitions insufficient, instead determining that an employer "causes" an employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. Consequently, an employer may not encourage its employees to forgo rest or conceal the right to rest but is not liable merely because an employee chooses not to take a day of rest. Notably, the payment of overtime for work on a seventh day is not considered an impermissible inducement; rather, it is seen as simply being compliant with a legal obligation under federal and state law.

Penalties

Employers who violate these day of rest rules shall be fined up to $50 per employee for the first violation and up to $100 per employee for the second violation, in addition to any other civil or criminal penalties provided by law.

Practice Recommendation

Employers should review their employee handbooks and any other policies pertaining to how they define a "workweek" for purposes of creating employee schedules. Employers should also ensure that their employees are fully aware of the right to take a day of rest during the workweek, such as by making that clear in a company policy provided to the employees. In addition, although employers can technically allow employees to perform work on a seventh consecutive day (as long as the employees are fully aware of their right to take a day of rest), this is still somewhat of a grey area in terms of what is considered coercive. Consequently, employers should be particularly careful when allowing employees to work on a seventh day in order to avoid any appearance of coercion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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