• California Supreme Court Clarifies California's Seventh Day Rest Rules
  • June 1, 2017 | Authors: Jeffrey P. Fuchsman; Jonathan S. Rosenberg
  • Law Firm: Ballard Rosenberg Golper & Savitt LLP - Encino Office
  • Many employers may be surprised to learn that employees must generally be given at least one day off out of seven. Although these rules have been in the Labor Code for nearly a century, there has been very little guidance given by the courts or the Labor Commissioner on the precise requirements. In a case involving Nordstrom, the California Supreme Court recently interpreted these little known rules. (Mendoza v. Nordstrom, Inc.)

    Background

    Section 551 of the Labor Code provides that "every person employed in any occupation of labor is entitled to one day's rest therefrom in seven." Section 552 states that "no employer of labor shall cause his employees to work more than six days in seven."

    Sections 554 and 556 include the following exceptions to the one day off in seven rules:

    (1) the rules do not apply in emergencies when necessary to protect life or property from loss or destruction;
    (2) if the nature of the work reasonably requires the employee to work seven consecutive days, it is permissible if the employee receives the equivalent of one day off in seven for the calendar month; or
    (3) the one day off in seven rule does not apply if the total work hours do not exceed 30 hours in any week, or six hours in any one day of the week.

    Section 553 of the Labor Code makes violations of these rules a crime (i.e., misdemeanor), and Section 558 imposes a civil penalty of up to $100 per employee per pay period for violations. In addition, Labor Code Section 510 requires employers to pay employees time and one-half for the first eight hours on the seventh consecutive day of work in the work week, and double time for hours over eight.

    The Nordstrom Case

    At issue in the Nordstrom case was how to measure the seven consecutive days. The employer argued that each work week stands on its own. The employees argued that any consecutive seven days of work is illegal, even if some of the days are in different work weeks

    The Supreme Court sided with the company that it is the employer's work week that matters, and so long as the employee is not required to work seven days in a row in the same work week, then it is not a violation. Thus, an employer can require employees to work more than six consecutive days in a row if the work days are spread out over two work weeks. For example, in a typical Monday through Sunday work week, an employee can work Tuesday through Sunday in week 1, and Monday through Saturday in week 2. Although the employee worked 12 consecutive days, no violation occurred since the employee did not work more than six days in either work week.

    The Supreme Court also considered when the exception for part-time employees applies. If an employee works 30 hours or less in the work week, or does not work more than six hours on any day in the week, the Court held the employee is not entitled to one day off in seven. However, the exception does not apply if the employee worked more than six hours on any one day in that work week.

    Lastly, the Supreme Court ruled that an employer "causes" its employees to work without one day of rest out of seven if it requires or merely induces the employee to give up a day of rest to which the employee is entitled. Conversely, if the employee is informed of the right to a day off and voluntarily chooses to work seven days in the work week, it is not a violation. Of course, the employer still must pay time and one-half for the first eight hours on the seventh consecutive day of the week, and double time after eight hours.

    Take Aways

    Employers must take the day-off rule into consideration when scheduling employees. Unless one of the narrow exceptions applies, requiring employees to work all seven days in a single work week can result in significant liability for civil penalties, and even criminal prosecution. Although it is permissible to allow employees to voluntarily work seven days in a single work week without a day off, employees must be fully informed of their right to decline the work. Thus, it is important that the rule be explained to employees in writing, such as in the company's employee handbook. Even if employees voluntarily choose to work seven consecutive days in the work week, they still must be paid premium pay on the seventh day even if their total hours for the week are fewer than 40.