October 19, 2021

Volume XI, Number 292

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October 19, 2021

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October 18, 2021

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California's "Day of Rest" Requirement Clarified

The California Supreme Court recently clarified the California Labor Code's requirement that employers must provide their employees a "day of rest" in Mendoza v. Nordstrom Inc., No. S224611 (May 8, 2017). The Labor Code prohibits an employer from "caus[ing] [its] employees to work more than six days in seven" (Lab. Code § 552), but provides two exceptions. First, "when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day's rest in seven." (Id. at § 554, subd. (a).) Second, "when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof." (Id. at § 556.) The Court clarified three questions related to the day-of-rest requirements.

1. How do employers calculate when an employee is guaranteed a day of rest?

The Court concluded that "[a] day of rest is guaranteed for each workweek," which the Labor Code defines as "any seven consecutive days, starting with the same calendar day each week." (Lab. Code § 500, subd. (b).) The Court further explained that under this rule, "[p]eriods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited." This means that as long as an employee receives the equivalent of one day's rest for every seven days in a workweek over the course of a month, an employee may be required to work for more than six consecutive days without violating the Labor Code. For instance, if an employer provides an employee with a day of rest at the beginning and at the end of two workweeks, an employee could be required to work up to twelve consecutive days in between those two days of rest, as illustrated here:

 

Sunday

Monday

Tuesday

Wednesday

Thursday

Friday

Saturday

Workweek 1

Rest

Work

Work

Work

Work

Work

Work

Workweek 2

Work

Work

Work

Work

Work

Work

Rest

In other words, Labor Code §§ 551 and 552 are to be applied on a workweek basis – not a seven-day rolling basis. All employers should evaluate the configuration of their current workweeks so that they are best positioned not to create an inadvertent violation of the Labor Code's day-of-rest provisions. 

2. How is the exemption applied to employees working shifts of six hours or less?

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. Therefore, if an employee works more than six hours on any one day of a workweek, a day of rest must be provided during that workweek (so long as no other exceptions apply).

3. What does it mean for an employer to 'cause' an employee to go without a day of rest?

An employer is prohibited from encouraging or inducing an employee to forgo a day of rest to which he or she is entitled. However, an employer is not forbidden from allowing an employee – who the employer has fully apprised of his or her entitlement to a day of rest – the independent choice to forgo a day of rest. According to the Court's opinion, employers must "maintain absolute neutrality as to the exercise of that right."

Employer Best Practices

In light of this decision, employers should include a provision in their employee handbooks that (i) defines the workweek (e.g., Sunday to Saturday, or Monday to Sunday, etc.), and (ii) advises employees of their entitlement to one day of rest per workweek. Employers might also consider requiring employees to give written consent each time the employee chooses to forgo a day of rest within a workweek.

© 2010-2021 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume VII, Number 144
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About this Author

Melissa Bell, Allen Matkins Law Firm, Labor and Employment Litigation Attorney
Associate

Melissa Bell works closely with clients to resolve employment matters through arbitration, mediation, and/or litigation. She defends employers in matters involving harassment, discrimination, retaliation, wrongful termination, wage and hour, and whistleblower claims. Additionally, Melissa represents employers in investigations brought by the U.S. Employment Opportunity Commission and California Department of Fair Employment and Housing.

949-851-5440
Dwight L. Armstrong, Employment litigator, Allen Matkins Law Firm
Partner

Dwight L. Armstrong is a partner in the firm's Orange County office. Dwight manages the firm's Labor and Employment Law Practice Group and is experienced in both litigation and transactional matters. He represents employers and management with a wide variety of employment litigation, ranging from wrongful termination and employment discrimination lawsuits to wage and hour class actions. Dwight has also handled numerous trade secret, no-solicitation and unfair competition cases. In addition, Dwight’s practice involves substantial preventative counseling and advice,...

949-851-5424
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