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Day Of Rest Statutes Clarified

In the recent California Supreme Court case of Mendoza v. Nordstrom, Inc., the court was asked by the 9th Circuit to clarify the meaning of Cal. Labor Code section 552, which prohibits an employer from “causing his employees to work more than six days in seven”, and Cal. Labor Code section 556, which provides for an exception “when the total hours of employment do not exceed 30 hours in any week or six hours in any day thereof.”

First, the 9th Circuit asked: Is the day of rest calculated by work week, or on a rolling basis to any 7-consecutive-day period?  The California Supreme Court answered: A day of rest if guaranteed for each workweek.  Periods of more than 6 consecutive days of work that stretch across more than one workweek are not per se prohibited.  Thus, the court’s answer allows a worker to work up to 12 days in a row if she starts on the second day of the workweek and ends on the last day of the next to last day of the following workweek.

 Second, the 9th Circuit asked: Does the exception for workers employed 6 hours or less per day apply so long as an employee works 6 hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than 6 hours on each and every day of the week?  The California Supreme Court answered:  This exception applies only to those who never exceed 6 hours of work on any day in the week.  If on any day in the week the employee works more than 6 hours, then a day of rest in the week must be provided.

Third, the 9th Circuit asked: What does it mean to “cause” an employee to go without a day of rest?  The California Supreme Court answered: An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  It is an employer’s obligation 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 is not, however, prohibited from allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

 –Adam K. Treiger, Esq.