California Labor &
Employment Law Blog
Feb 23, 2015

Ninth Circuit Seeks California Supreme Court Guidance on California’s Day of Rest Law

Topics: Court Decisions, Wage & Hour Issues

California Labor Code section 551 provides that employees are entitled to one day’s rest in seven and that no employer shall cause an employee to work more than six days in seven.  The statute exempts employees who do not work more than 30 hours per week, or who do not work more than 6 hours in any day of the week.  In Mendoza v. Nordstrom, two former Norstrom employees sued the retailer for violating section 551’s day of rest requirement.  One of the employees worked seven consecutive days on three occasions, and the other employee worked seven consecutive days on one occasion.  However, they sought to represent a class of all employees working for Nordstrom in California for a four-year period who worked seven consecutive days on one or more occasions.  The district court held a bench trial on the plaintiffs’ claims and found in favor of Nordstrom.  The district court held that Nordstrom did not violate the day of rest rules because several of the shifts worked by the two plaintiffs in the seven consecutive day periods were shifts of less than six hours.  The district court also held that Nordstrom did not “cause” the plaintiffs to work more than six days in seven because the plaintiffs were not scheduled to work more than six days in seven and the only reason they worked more than six days in seven is because they agreed to pick up shifts for other employees (at a supervisor’s or co-worker’s request).  The plaintiffs appealed to the Ninth Circuit.

Rather than deciding the claim on the merits, yesterday the Ninth Circuit certified several questions to the California Supreme Court seeking the Supreme Court’s guidance on the proper interpretation of California’s day of rest requirements.  Explaining that this guidance was necessary to properly resolve the merits of the claim in the case, the Ninth Circuit framed three questions for certification as follows:

(A) 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.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven day period?

(B) California Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”  Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?

(C) California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

The California Supreme Court has discretion whether or not to accept the certification request, but it seems likely that the Court will do so given the lack of interpretive guidance on these day of rest issues under California law.  The Ninth Circuit’s certification request is available here.  We will keep you posted on any significant developments in this matter.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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