In Mendoza v. Nordstrom1, the California Supreme Court recently provided some guidance on what it means to have a "Seventh Day Violation."2
Former employees at the retail chain Nordstrom, Inc. alleged that on several occasions during their employment, supervisors asked them to fill in for other employees, which caused them to work more than six consecutive days. During each of these working periods some, but not all, of the employees' shifts lasted six hours or less. The employees sued their former employer for violations of California Labor Code sections 551 and 552, alleging that Nordstrom failed to provide "statutorily guaranteed days of rest."
The lawsuit was removed to federal court, which ruled in favor of Nordstrom. The employees appealed to the Ninth Circuit, which requested that the California Supreme Court resolve unsettled questions of California law relating to Labor Code sections 551 and 552.
The Statutes in Question
California Labor Code section 551 provides that "[e]very person employed in any occupation of labor is entitled to one day's rest therefrom in seven." Labor Code section 552, entitled "Maximum consecutive working days," provides that "[n]o employer of labor shall cause his employees to work more than six days in seven" (emphasis added). Additionally, Labor Code section 556 contains an exception to the requirements of section 551 and 552 "when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof."
The Questions Presented to the California Supreme Court
Pursuant to Rule 8.548 of the California Rules of Court, the Ninth Circuit Court of appeals requested that the California Supreme Court address the following questions:
1. "Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?" The difference is illustrated by the following example. If an employee starts off a workweek with a day off, works the next six days of the workweek, and then works the next six days of the following workweek before receiving a day off on the last day, that employee has received two days off in two seven-day workweeks, but the employee has also worked twelve consecutive days.
2. "Does the section 556 exemption for workers employed 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 each and every day of the week?" The Plaintiffs working six consecutive days had some days where they worked fewer than six hours.
3. "What does it mean for an employer to ʻcause' an employee to go without a day of rest (§ 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?"
The Court's Answers and Analysis
With regard to the meaning of "one day's rest in seven," the Court held that 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.
In arriving at that conclusion, the Court reviewed the text and history of the Labor Code sections. It found the statutory language "manifestly ambiguous." On the one hand, neither section 551 nor 552 mentions the word "week," only referring to working "six days in seven" or "one day's rest in seven." On the other hand, if the Legislature had intended to provide a day off after any six consecutive days of work, it could have chosen more specific language (such as "consecutively" or "in a row").
The legislative history of the statutes was not much more enlightening. Eventually, the Court looked to the Industrial Welfare Commission's Wage Orders, which do refer to providing a day's rest in a seven-day workweek.
Next, the Court held that the exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If an employee works more than six hours on any one day within a workweek, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.
The Court noted that any reading of the statute where the exception would apply when an employee worked fewer than six hours on any one day would make the statute superfluous. An employee working fewer than 30 hours in seven-day week will always have one workday of less than six hours, while an employee who works at least six hours a day in every seven-day workweek will never work fewer than 30 hours.
Finally, the Court held that an employer causes its employee to go without a day of rest when it induces the employee to forgo 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 of rest. Here, the Court found a balance between the parties' "extreme" interpretations. The employees contended that an employer causes an employee to forego a day of rest whenever it allows or permits the employee to work a seventh day, while Nordstrom's position was that "cause" required "forceful action."
As the Court's analysis shows, the competing interpretations of the Labor Code put forth by the parties in this case were both plausible based on the ambiguity in the statutes. In light of this clarification, employers, employees, and the attorneys who represent them should take the time to review workplace policies and ensure they comply with this guidance.
1 Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074.
2 Not to be confused with the "Sixth Day Violations" in the underrated Arnold Schwarzenegger classic of 2000, "The 6th Day."