by Michelle Ferber and Robert Ferrier
In the recent case of Mendoza v. Nordstrom, Inc., the Ninth Circuit, as described below, asked for and received substantial guidance from the California Supreme Court regarding California’s “day of rest” law, otherwise known as Cal. Lab. Code §§ 551 and 552. The Supreme Court has now provided substantial clarity on this issue.
Mendoza provides a roadmap to guide employers through the hazards of California’s “day of rest” laws. First, the measure of any seven-day period remains the workweek. If a day of rest is offered each workweek, it is permissible for employees to work more than seven day spans across workweeks. Second, Section 556 offers an exemption to the workweek rule only if an employee never works more than six hours a day during any day during the workweek. Third, employees can volunteer to waive the rest day requirement, but must be fully apprised of their rights to a day of rest and cannot be coerced or induced to do so.
By way of background, the Plaintiffs in Mendoza filed a Private Attorneys General Act (“PAGA”) claim against Nordstrom alleging that Nordstrom had repeatedly violated Cal. Lab. Code § 551, which grants an employee a right to one day’s rest in every seven. Nordstrom removed the action to federal court.
The District Court dismissed the case, holding that: (1) the “day of rest” statute applies on a rolling basis to any consecutive seven-day period, not simply the workweek; (2) California law (Cal. Lab. Code § 556) exempts Nordstrom from that requirement because each Plaintiff worked one day of less than six hours during any seven day period, and (3) that Nordstrom did not cause (or coerce) the Plaintiffs to work more than seven consecutive days because the Plaintiffs had the option to accept or decline additional shifts when available. The Plaintiffs appealed the decision to the Ninth Circuit.
The Ninth Circuit certified questions to the California Supreme Court. The Court responded that: (1) a day of rest is guaranteed for each workweek and that a period of more than six consecutive days that stretch across workweeks is permissible; (2) Section 556 applies only to those who never exceed six hours of work on any day of the workweek, and; (3) an employer coerces an employee to go without a day of rest “when it induces the employee to forgo rest,” not when an employee voluntarily chooses to forgo it.
Armed with this knowledge, the Ninth Circuit first held that the District Court had answered the first two questions incorrectly. The Court also stated, however, that the stipulated facts between the parties showed that no Plaintiff had worked more than six consecutive days in any workweek. Therefore, despite the District Court’s misinterpretation, Plaintiffs’ claims still failed. Plaintiffs had also argued to the District Court, however, that the case should have been remanded to allow a new representative, who did suffer day of rest violations to step forward and continue litigating the case. The District Court denied this, and the Plaintiffs pressed this claim at the Ninth Circuit.
The Ninth Circuit held that the procedure for adding new plaintiffs was not as simple as Plaintiffs presented it, noting that PAGA has procedural requirements outside of the simple status of an “aggrieved employee.” As one example, the Court observed that PAGA plaintiffs are required to exhaust administrative remedies prior to filing a complaint in State court.
While the Court provided a roadmap to the evolving questions surrounding the definition of “workweek” in California, substantial ambiguities remain. Ferber Law has decades of experience and is ready to provide businesses with the advice and legal expertise to help navigate the law in an ever-evolving legal landscape.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.