Agricultural employers have been exempt from California Labor Code section 551 which provides that “[e]very person employed in any occupation of labor is entitled to one day's rest therefrom in seven” and section 552 which safeguards that statutory entitlement by providing that “[n]o employer of labor shall cause his employees to work more than six days in seven.”
However, Labor Code section 554(a) provided an exemption to the above provisions (along with others in the same Labor Code chapter) to any person employed in an agricultural occupation. Unfortunately AB 1066 amended section 554, subdivision (a), to delete that exemption. And because AB 1066 went into effect on January 1, 2017, the exemption was arguably eliminated on January 1, 2017. Even though AB 1066 was generally understood to phase-in the reduction thresholds for the payment of overtime beginning in 2019, poor and muddled drafting of the statute may have had the unintended (or intended) effect of eliminating the day-of-rest exemption on the enactment date and not with the phase-in of the overtime threshold reductions.
However, Labor Code Section 554 contains an exception to the rule, allowing employers to accrue rest days when “...the nature of the employment reasonably requires that the employee works seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven...”. Section 554(b) also provides a “hardship” exemption when the DLSE determines that “...in her or his judgment hardship will result to the employer and employees.
An exemption to the day of rest rules may be claimed in the case of “emergencies, work performed in the protection of life or property from loss or destruction, or when hours worked do not exceed 30 in any work week or six hours in any work day.”
The California Supreme Court is currently considering open questions as to the intended meanings of the day of rest provision found in sections 551 and 552. In Mendoza v. Nordstrom, Inc., the court is considering the question: what does it mean for an employer to “cause” an employee to work more than six days in seven? Does it mean to force, coerce, pressure, schedule, encourage, reward, permit, or something else?
Section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day's rest therefrom in seven.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?
Finally, Labor Code section 556 exempts employers from providing such a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” (Emphasis added.) The Supreme Court is deciding whether that exemption applies when an employee works less than six hours in any one day of the applicable week, or if it applies only when an employee works less than six hours in each day of the week?
Answers to these questions before the Supreme Court will help all employers, including agricultural employers, understand how to comply with the day of rest requirement.
Employers are encouraged to make seventh-day work voluntary and to encourage employees who volunteer to work on the seventh day to sign a voluntary-work acknowledgement. Below are sample forms in English and Spanish created by Rob Roy at the Ventura County Agricultural Association for your use.
For more information, please contact Jason Resnick at (949) 885-2253.
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