Wage and Hour Case Notes

• Publication year: 2017
• Author: By Lois M. Kosch

Wage and Hour Case Notes

By Lois M. Kosch

Lois M. Kosch is a partner at Wilson Turner Kosmo. She specializes in counseling and representing employers in all aspects of employment law and litigation. Ms. Kosch is a former member of the Labor and Employment Law Section's Executive Committee.

California Supreme Court Clarifies Day of Rest Requirements

Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074 (2017)

Former employees filed a class action lawsuit alleging their employer violated California labor laws by failing to provide statutorily guaranteed days of rest. The district court held there was no violation and dismissed the action, and the employees appealed. The Ninth Circuit Court of Appeals asked the California Supreme Court to resolve unsettled questions relating to the operation of California's day of rest statutes.

The case put at issue two related provisions of the California Labor Code that ensure day-of-rest protection for employees. Section 551 entitles employees to "one day's rest therefrom in seven," and § 552 prohibits employers from "caus[ing] employees to work more than six days in seven." The day of rest guarantee does not apply, however, "when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof."¹

First, the court addressed a question concerning the calculation of the seven-day period provided in Labor Code §§ 551 and 552. The court held employees are guaranteed a day of rest for each "workweek," rather than one day in every seven on a rolling basis, and there is no per se prohibition on periods of more than six consecutive days of work that stretch across more than one workweek. The court also explained that while the day-of-rest guarantee is not absolute, Labor Code § 554 ensures that employees must average no less than one day of rest for every seven days worked over the course of every calendar month. In other words, if at one time an employee works every day of a given week, the employee must be permitted multiple days of rest in another week to compensate.

Second, the court concluded that the "six hours or less" daily exemption in Labor Code § 556 applies only to employees who work no more than six hours each and every day of the given week.

Third, the court clarified what it means for an employer to "cause" an employee to go without a day of rest, which is prohibited by Labor Code § 552. The court held that an employer causes an employee to go without a day of rest when it "induces" or "encourages" the employee to forgo rest to which he or she is entitled. An employer, however, is not liable simply because an employee, fully apprised of the entitlement to rest, independently chooses to work a seventh day. The court also noted that the mere payment of overtime is not an impermissible employer inducement.

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