California Supreme Court: Seven Day Rule Applies to Work Week Not Calendar Week
By Anne Cherry Barnett and Emily Knoles
On May 8, 2017, the California Supreme Court provided clarification on three important issues related to California’s mandatory day of rest that have long been murky under existing California law:
1. The Seven Day period for determining the “Day of Rest” is Calculated by the Workweek and Not a Rolling Seven-Consecutive Day Period
California’s Labor Code prohibits employers from requiring employees to work more than six days in a seven-day period--entitling every employee to a day of rest in every seven days. However, the Labor Code does not specify if this mandatory rest day is based on the workweek or a calendar week. See Labor Code §§551, 552. In February 2015, the Ninth Circuit asked the California Supreme Court to clarify this issue, and the California Supreme Court provided the answer in Mendoza v. Nordstrom, Inc. (Cal. S.Ct. May 8, 0217) S224611. The Court held that a day of rest is guaranteed for each workweek and that where periods of more than six consecutive days of work stretch across more than one workweek, there is no per se violation of Labor Code §§ 551 or 552. As a result, if an employer staggers its workweek to cross two consecutive calendar weeks, it is possible that an employee may not accrue the required day of rest until after twelve consecutive days of work.
It is important for employers utilizing staggered workweek schedules to remember that Labor Code § 554 requires that an employee receives the equivalent of one day’s rest in seven, or at least four days of rest each calendar month. Therefore, if an employer is taking advantage of the staggered workweek, it needs to make sure employees are still receiving the mandatory days off on a monthly basis for compliance.
2. Labor Code §556 Exemption for Workers Employed Six Hours or Less Only Applies to Employees Who Never Exceed Six Hours of Work on Any Day of the Workweek
Labor Code §556 provides an exemption to the mandatory day of rest for workers employed six hours per day or less. It has been an open question whether the §556 exemption applies when an employee works six hours or less on at least one day of the applicable workweek, or if it only applies when an employee works no more than six hours on each and every day of the workweek. In Mendoza, the California Supreme Court clarified that, while employees who work schedules of less than six hours per day are exempt from the seventh day of rest requirement, if the employee works even one single shift of more than six hours in the workweek, they are not exempt.
3. An Employer Must Not “Cause” an Employee to Go Without a Day of Rest
Labor Code §552 requires that an employer not “cause” an employee to go without a day of rest. When determining whether the employer has “caused” an employee to work the seventh day in a workweek, the Court in Mendoza stated that an “employer‘s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work the seventh day.”
However, it is important for employers to remember that if an employee does work the seventh day in a work week, then the employer may be liable for a day of rest violation and any associated penalties. Additionally, California’s overtime laws require that the entire seventh day of work be paid as overtime consistent with state and federal pay requirements.
In light of this recent guidance by the California Supreme Court, employers should (1) review their workweek and scheduling policies and update as necessary for compliance; and (2) consider conducting an internal audit to determine whether any seventh-day violations are occurring and corrections with the benefit of these new clarifications.