The California Supreme Court in Mendoza v. Nordstrom, recently provided long-awaited clarification to California employers about how to interpret California’s day-of-rest laws. Mendoza involved a group of former nonexempt Nordstrom employees who alleged in a Private Attorneys General Act action that Nordstrom had failed to provide them guaranteed days of rest. After losing a trial in federal court, the employees appealed to the Ninth Circuit. The Ninth Circuit, in turn, filed an order requesting that the California Supreme Court resolve “unsettled questions of California law” about the day-of-rest laws, which are found in Labor Code §§550-558.1.

The Labor Code provides two provisions that guarantee a day of rest to nonexempt California employees. Section 551 states, “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Section 552 goes on to provide, “No employer of labor shall cause his employees to work more than six days in seven.” The first question posed to the California Supreme Court was how to calculate the seven-day period referred to in those two sections. The employees took the position that the statutes guaranteed a day of rest on a rolling basis, for any seven consecutive days, but the court disagreed. Rather, the court held that there is a day of rest guaranteed for each workweek, and even though that could result in an employee working more than six consecutive days of work across more than one workweek, there is no per se prohibition on that result. The court went on to explain that employers and employees had flexibility in scheduling, and all the law requires is that on balance, employees average no less than one day’s rest for every seven days’ worked over the course of every calendar month. This can be achieved by providing an employee who works every day of a given week multiple days of rest in another week, shortly before or after the week in which every day is worked.

The Ninth Circuit secondly asked the California Supreme Court to clarify an exception to the day-of-rest rules contained in §556 of the Labor Code, which excepts situations where “the total hours of employment do not exceed 30 hours in any week or six hours in one day thereof.” Nordstrom argued, and the trial court found, that so long as an employee is given at least one day with no more than six hours’ work during a one-week period, he or she may be required to work all seven days with no day of rest. But the California Supreme Court disagreed with that interpretation, holding that the exception from seventh-day rest protection applies only to employees who never work more than six hours of work on any day of the workweek, and who work no more than 30 hours total during the workweek.

Lastly, the Ninth Circuit asked for clarification as to the meaning of “cause” in the context of Labor Code §552′s language stating that an employer may not “cause” employees to work more than six days in seven. The court held that an employer does not become liable simply because an employee chooses not to take a day of rest. Rather, an employer “causes” an employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. While the court noted that both express requirements and implied pressure by an employer would be problematic, the court did not address what specific kinds of “inducements” to forgo rest would be prohibited. The only clear pronouncement was a footnote stating that the simple payment of overtime is not an improper inducement, because the payment of overtime is a legal obligation. Employers likely can anticipate further litigation on the nature of an impermissible inducement, given the lack of specificity from the court on this point.

California employers can take away the following: (1) Unless their nonexempt employees work no more than six hours a day and no more than 30 hours in a week, those employees are entitled to one day of rest for each workweek. (2) Should an employee need to work every day of a given week, then he or she must be provided with an extra day of rest in another week of the month to compensate. (3) Employees can choose to work seven days in a workweek if they wish, but an employer cannot expressly or impliedly require that they do so. To this end, employers would be well-advised to make sure that all records relating to such situations clearly reflect the employees’ free choice. This includes reviewing performance appraisals and discipline to ensure that there are no negative consequences to an employee for choosing not to forego his or her day of rest.

Employers with collective bargaining agreements that govern their employees’ wages and hours of work should note that if the collective bargaining agreement expressly provides otherwise, they are exempted from the requirement to provide one day’s rest in seven. Without an express exemption in the agreement, however, the day-of-rest requirement must be met.

Finally, employers must remember that the overtime laws apply whenever a nonexempt employee works seven days in a workweek, regardless of the reason. That is, employers must pay nonexempt employees 1.5x the regular rate of pay for the first eight hours of work on the seventh day, and pay nonexempt employees 2x pay for hours beyond eight, unless a collective bargaining agreement exception applies.