In a big win for California employers, the California Supreme Court ruled on May 8, 2017 that employers are not required to provide employees with a “day of rest” on a “rolling seven-day basis,” but must only ensure that employees receive no less than an average of one day of rest for every seven-day workweek in a calendar month. This means that employers may, from time to time, require that employees work seven consecutive days, as needed, without fear of running afoul of an ambiguous provision of the California Labor Code, which requires that every employee receive one day of rest for each seven days worked.
Employers must still comply with California premium pay obligations, requiring employers to pay employees one and one-half times the regular rate for the first eight hours worked on the seventh consecutive day of work and twice the regular rate for any hours worked thereafter. Employers should be careful not abuse the flexibility provided by the statutory code. If an employee is required to work every day of a given workweek, the employer should generally provide the employee with multiple days of rest shortly before or after that week to ensure that, on balance, the employee averages no less than one day of rest for every seven-day workweek in the calendar month.
The case arose from a putative class action brought by former sales employees Christopher Mendoza and Meagan Gordon against Nordstrom, Inc. in California. Mendoza and Gordon claimed the company violated Sections 551 and 552 of the California Labor Code by requiring them to work more than six consecutive days on occasion in order to fill in for other employees who were unable to work. For instance, the plaintiffs claimed that the employer sometimes required them to work 12 consecutive days by providing a day of rest at the beginning of the first workweek and at the end of the second workweek. Section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Section 552 provides that “[n]o employer of labor shall cause his employees to work more than six days in seven.” The district court held a bench trial and concluded that Section 551 guarantees a day of rest on a rolling basis for any seven consecutive days unless the employee works at least one shift of six hours or less during the seven-day period. However, the court nonetheless concluded that Nordstrom did not violate the Code because it did not “cause” either Mendoza or Gordon to work more than six consecutive days since it did not “force or coerce” them to do so. The plaintiffs appealed, and on appeal, the Ninth Circuit filed an order requesting that the California Supreme Court resolve unsettled questions of California law regarding the operation of the state’s day of rest statutes.
The California Supreme Court agreed to answer the certified questions, which the Ninth Circuit proposed as the following: (1) “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?” (2) “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?” (3) “What does it mean for an employer to ’cause’ an employee to go without a day of rest : force, coerce, pressure, schedule, encourage, reward, permit, or something else?”
With regards to the first question, the California Supreme Court held that sections 551 and 552 require employers to provide at least one day of rest during each workweek, as set by the employer, and not during any given seven-day rolling period, meaning that an employee could be required, for example, to work 12 consecutive days during a two-week period. Applying rules of statutory construction, the Court concluded that to hold otherwise would be to render obsolete language in the overtime statute requiring premium pay for work on a seventh consecutive day during a particular workweek, and courts should avoid reading a statute in a way that would render other statutory language superfluous. As stated by the California Supreme Court, “employees are generally assured a day of rest [during each workweek], but when circumstances dictate foregoing a day of rest, Section 510 provides, as a fallback, consideration for the hardship in the form of premium pay.”
As for the second question, the Court held that Section 556’s exception to the “day of rest” requirement only applies to workers who work six hours or less during each day in a given workweek or no more than 30 hours for the total workweek. The Court again relied on rules of statutory interpretation, explaining that a contrary reading would again render portions of the statutory text superfluous and of no effect. The Court also explained that to hold that the exception requires each day’s work to last six hours or less in order to apply would result in certain absurdities in which an employee could be required to work seven consecutive days without any rest (e.g., working six hours on the first day and then eight hours on every day thereafter). As noted by the Court, this would convert the guarantee from a guarantee of a single day of rest into a guarantee of a single day of no more than six hours of work. In other words, “[t]he exception would swallow the rule.”
Finally, as to the third question, the Court ruled that an employer does not “cause” an employee to work more than six days in seven unless the employer takes some affirmative action to motivate or induce the employee to work. This action can be either express or implied, but significantly, an employer does not violate the California Labor Code simply by allowing an employee to forego his or her entitlement to a day of rest.
In sum, employers can now “rest assured” they are provided with flexibility in scheduling employees or in requesting employees fill in for others who are unable to work. Employers may ask that an employee work seven consecutive days, provided that they also pay appropriate premium pay and ensure that the employees are provided with, on average, at least one day of rest for each specific workweek in which they have worked more than 30 hours or more than six hours in any one day. Employees may, upon their own initiative, decline a day of rest, but if so, employers should require that such employees document that they have expressly declined their entitlement to a statutory right.
 Note that premium pay is also not available on a rolling basis, meaning an employee would not be entitled to premium pay for working on an “eighth” consecutive day. Premium pay is based solely on an employer’s regularly recurring workweek.