Date: May 09, 2017
Category:

The California Supreme Court has issued its much anticipated opinion in Mendoza v. Nordstrom, which provides much needed and welcome clarity regarding the state's "day of rest" statutes. The rule entitles employees to one day’s rest in seven and prohibits employers to "cause" workers to work more than six in seven days.

The day of rest statutes suddenly emerged as significant new areas of concern for agricultural employers with the passage of AB 1066, which removed ag’s exemption from the “day of rest” requirements, as well as significantly altered the overtime obligations for ag workers.

Labor Code section 551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Labor Code section 552 prohibits employers from "causing their employees to work more than six days in seven." Under Labor Code section 556, there is an exemption to these requirements “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” Western Growers provided an initial analysis of the day of rest rule in a recent “Ag in the Law” column.

The State Supreme Court was tasked with answering the following three questions that the Ninth Circuit Court of Appeals was unable to resolve given the unclear text and history surrounding these provisions:

  • What does it mean to "cause" an employee to work more than six days in seven?  Is it enough to "allow" the employee to work seven days in a row, or must the employer require the employee to work more than six days in a row to be found in violation of the statute? 
  • Is the day of rest required for any consecutive seven-day work period on a rolling basis, or is it measured based on the employer's workweek?
  • Does the exemption from the day of rest requirement apply where the employee works six hours or less on at least one day during the workweek, or must the employee's hours be 6 or less every day of the workweek (and no more than 30 for the entire week)? 

The State Supreme Court began its analysis by acknowledging that the text of these statutes are “manifestly ambiguous” and then answered each question in turn, as follows:

  • Employers must ensure employees at least one day of rest for each workweek, rather than one day in every seven on a rolling basis.
  • The exemption for employees working shifts of six hours or less applies only if every day involves six hours or less of work and less than 30 hours worked in the workweek.
  • An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.  The court went on to say, “an employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.” The court elaborated further, saying “…an employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right.  “An employer may not encourage its employees to forego rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work on a seventh day.”

Ag employers are encouraged to continue to use a “voluntary work” form which has been updated by Ventura County Ag Association and provides contemporaneous documentary evidence that the employer apprised employees of their right to take a day of rest, but that the employee voluntarily chose to work on a seventh day.

If employees are required to work seven or more consecutive days due to the “nature of their work,” they must receive the equivalent of one day’s rest in seven over the course of a month (e.g. the number of rest days received by the employee must amount to the number of calendar days divided by seven.)  “Nature of the work” is not defined but likely applies to harvest and irrigation activities that cannot be put off even one day due to potential damage to the crop. Finally, overtime pay is required for all work done on the seventh day.

For more information, contact Jason Resnick at (949) 885-2253.

WG Staff Contact

Stephanie Metzinger
Manager, Communications
949-885-2256

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