How Do I Work Thee, Let Me Count the Ways … Part II
The California Supreme Court clarifies the Labor Code’s “day of rest” rule.
Under California law, an employee is entitled to at least one day of rest in seven, and any employer that causes an employee to work without a day of rest in seven is guilty of a misdemeanor.[1] There are exceptions to this rule, including for part-time workers who have worked less than 30 hours in a week or no more than six hours in any one day.[2] Any work done on the seventh day of work must be compensated at overtime rates for the first eight hours, and double time rates for work in excess of eight hours.[3]
In Mendoza v. Nordstrom, Inc., plaintiff employee sought penalties for Nordstrom’s alleged violation of the “day of rest” rule.[4] Using a “rolling” theory of calculating the seven days of work, the plaintiff argued that the “day of rest” statutes prohibit an employer from causing an employee to work on any seventh consecutive day of work.[5]
The defendants reasoned that an employee was due a day of rest in a seven day workweek, and not for any seventh day of work that might span multiple workweeks.[6] For example, if an employer’s established workweek is from Sunday to Saturday, the employer may schedule an employee’s off day on Sunday the first workweek, and Saturday the next workweek, causing the employee to technically work 12 days in a row over two workweeks without a violation of the “day of rest” rule.
The California Supreme Court rejected the “rolling” seven day theory and determined that an employee was due a day of rest in a seven day workweek.[7] However, the Court also required employers to ensure their employees receive an average of one day’s rest in seven within each month of work, meaning if an employee chooses to work seven days in a row, the missed day of rest must be made up sometime in that calendar month.[8]
The Court also decided that the part-time exception to the “day of rest” rule means any employee who works less than 30 hours in a week and has not worked more than 6 hours in any work day may be scheduled to work on the seventh day without the required overtime pay.[9]
Lastly, the Court determined that an employer “causes” an employee to work on the seventh day when the employer takes some affirmative act to motivate an employee to forego their day of rest or attempts to conceal from the employee their right to a day of rest.[10] However, an employer acts lawfully when it apprises the employee of their “day of rest” rights and the employee chooses to work on the seventh day.[11]
Takeaways
An employee is permitted to work seven days in a row in an employer’s established workweek if the following conditions are met:
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The employee must be apprised of their right to a day of rest and knowingly choose to work anyway. The employer must maintain absolute neutrality as to the exercise of that right and cannot take any affirmative action to motivate or induce an employee to forego their rest day.
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The employee must receive overtime wages for the first eight hours worked on the seventh day, and double time wages for work in excess of eight hours. EXCEPTION: Part time employees can work on the seventh day without overtime wages as long as they have not worked more than 30 hours in the workweek and have not worked more than 6 hours in any work day in the workweek.
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The employee must average no less than one day’s rest for every seven days worked, within the month of work.
To develop a compliant policy and obtain help on training your staff to carry out the California Supreme Court’s interpretation of “days of rest,” contact the Law Office of Karen Sloat.
Read “How Do I Work Thee, Let Me Count the Days… Part I“
[1] Labor Code Sections 551, 552.
[2] Labor Code Section 556.
[3] Labor Code Section 510.
[4] Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074.
[5] Id. at 1079.
[6] Id. at 1080.
[7] Id. at 1086.
[8] Id. at 1086-1087.
[9] Id. at 1090.
[10] Id. at 1090-1091.
[11] Id.
