Law Review: Employees get one day off in seven? | SierraSun.com

Law Review: Employees get one day off in seven?

Jim Porter
Law Review

In the 1870s, the California Legislature prohibited certain businesses from being open on Sundays. Later, women and minors were required to have one day's rest in seven days. Sunday was the designated day. Those laws designating Sunday as the "day of rest" were later ruled unconstitutional.

Nordstrom's Sued by Employees

On May 8th, three days after my nationally celebrated Cinco de Mayo birthday, the California Supreme Court handed down a ruling clarifying California's "day of rest" laws in Mendoza v. Nordstrom, Inc. The laws entitle employees to one day of rest each workweek, subject to certain exceptions.

Section 552 of the Labor Code prohibits an employer from "caus[ing] his [sic] employees to work more than six days in seven," but do not apply "when the total hours of employment do not exceed 30 hours in any week or six hours in any day thereof." (Section 556)

Cutting to the chase, the California Supreme Court determined that the day of rest required by California’s Labor Codes is guaranteed for each workweek and does not apply on a so-called rolling basis to any seven-consecutive day period.

Are those codes clear to you? You would think so because we have been living with those laws for decades. Guess what, the Supreme Court found those codes "manifestly ambiguous."

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Mendoza sued Nordstrom claiming he was asked by his supervisor or coworkers to "fill in" by working extra shifts of absent co-workers requiring working more than six consecutive days.

One Day off in Seven?

Cutting to the chase, the California Supreme Court determined that the day of rest required by California's Labor Codes is guaranteed for each workweek and does not apply on a so-called rolling basis to any seven-consecutive day period.

In other words, periods of more than six consecutive days of work that stretch across more than one week are not prohibited. This can occur when there is an early day of rest in one week and a late day of rest in the next.

On average no more than six work days out of seven, which means at times an employee may have to work more than six days in a row.

Of course, we're talking non-exempt employees — not management.

Six Hours or Less a Day

One of the exemptions to the day of rest rules allows employees to work on a seventh day if the employee is working shifts of six hours or less.

The question in Mendoza was whether the employee had to work six or less days on every daily shift worked in a workweek to qualify for the exception.

The court ruled that work on the seventh day is allowed only when both the week limit, requiring work of 30 hours or less, and the daily limit, requiring work of six hours a day or less, are satisfied. For example, if the employee worked one eight-hour day that week, the 30 hours or less exemption does not apply.

Employer "Causes" Employee to Work

Section 552 provides that an employer may not "cause" employees to work more than six days in seven. The court struggled with what "cause" meant.

Ultimately, the Supreme Court determined that as long as the employee is fully informed of his or her right to a day of rest, an employer does not "cause" an employee to go without a day off if the employee chooses to work on the seventh day.

The employer must "maintain absolute neutrality" as to the employee's exercise of that right to work on a day off. The employer may not force the employee to work on a day off.

In a footnote, the Supreme Court noted that the payment of overtime for seventh-day work is not considered an impermissible inducement to go without a day of rest. In fact, it is common practice.

The labor commissioner has the power to impose civil penalties for violation of these laws. As a practical tip, employee manuals should define employee's workweeks.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at porter@portersimon.com or http://www.portersimon.com. Like us on Facebook.

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