The California Labor Code entitles non-exempt employees to at least one day of rest every seven days. Specifically, Labor Code § 551 provides: “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Similarly, Labor Code § 552 provides: “No employer of labor shall cause his employees to work more than six days in seven.” Labor Code § 556 provides an exception to these rules, stating: “Sections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”
In Mendoza v. Nordstrom, the California Supreme Court recently clarified ambiguities in these laws and specifically answered the following questions that were presented to the Court:
- Is the day of rest required by Sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
- Does the Section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?
- What does it mean for an employer to “cause” an employee to go without a day of rest per the language in Section 552? Force, coerce, pressure, schedule, encourage, reward, permit, or something else?
As to the first question, the Court ruled that the “one day of rest in seven” must be calculated by the workweek rather than on a rolling basis. Employers may define their workweek as any seven-consecutive-day period, such as Monday through Sunday or Wednesday through Tuesday.
As to the second question, the Court concluded that Section 556 only exempts an employer from providing the day of rest required by Sections 551 and 552 when an employee either (1) works less than six hours in each of the seven consecutive days of the workweek, or (2) less than 30 hours total in the workweek. If on any one day of the workweek an employee works more than six hours, the employer must provide a day of rest during that workweek unless some other exception applies. As one example of an exception that could apply, Labor Code Section 554(a) provides that “when the nature of the employment reasonably requires that the employee work seven or more consecutive days,” strict compliance with Sections 551 and 552 is not required if “in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”
As to the third question, the Court held that an employer “causes” an employee to go without a day of rest when it induces the employee to forgo the day of rest to which the employee is legally entitled. The Court made clear that employers are not forbidden from permitting or allowing employees who are fully apprised of their entitlement to a day of rest to independently choose not to take the day of rest.
This case underscores the importance to employers of clearly defining the seven-day period that comprises their workweeks and setting this out in an employee handbook or other written policy that is disseminated to staff.
In addition, pursuant to Labor Code § 510, employers who do require employees to work seven consecutive days in a workweek must pay those employees 1.5 times their regular rate of pay for the first 8 hours of work performed on the seventh consecutive day in the workweek, and 2 times their regular rate of pay for all hours worked in excess of 8 on the seventh consecutive day in the workweek. However, even if an employer properly pays overtime to an employee performing seven consecutive days of work, the employer can still be found to have violated Sections 551 and 552, exposing it to liability, including under Labor Code Section 553, which provides that “[a]ny person who violates this chapter [regarding days of rest] is guilty of a misdemeanor,” as well as under the Private Attorneys General Act, Labor Code Section 2698 et seq., which allows employees to recover civil penalties for violations of various Labor Code provisions.
As a result, before requiring employees to work seven consecutive days in a workweek, employers should proceed with caution and consider consulting with experienced employment law counsel.
The above summary has been prepared for general informational purposes only and is not intended as legal advice.
Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters. Please visit our website at www.laemploymentcounsel.com to learn more about us.