March 23, 2017

And on the Seventh Day…There Continue to Be Questions

By Jonathan Siegel, Jackson Lewis P.C.

Agriculture employers continue to be challenged by Assembly Bill 1066, the groundbreaking new California law that, among other things, extends the state’s daily and weekly overtime requirements to agricultural workers over a period of time. However, the new legislation also has created many questions regarding its interpretation and impact based on some questionable drafting of the law.

As previously documented, AB 1066 repealed agriculture’s long-standing 10-hour straight-time workday and replaced it with the gradual imposition of an eight-hour workday and a 40-hour workweek for agricultural employees. While the new laws affecting overtime pay will not be phased-in until 2019 for most employers, other changes in the bill went into effect on January 1, 2017. Most notably, AB 1066 arguably amended Labor Code section 554(a), removing the “one day’s rest in seven” exemption previously enjoyed by agricultural employers.

This “day of rest” rule is promulgated by Labor Code sections 551 and 552. Section 551 requires “[e]very person employed in any occupation of labor [to be] entitled to one day’s rest therefrom in seven,” while section 552 mandates that “[n]o employer of labor shall cause his employees to work more than six days in seven.”  Prior to AB 1066, Labor Code section 554(a) provided an exemption from the rule to any person employed in an agricultural occupation. To make matters worse, the various meanings in these “day of rest” provisions are being considered by the California Supreme Court.

Since agricultural employers must now navigate this area of law, it is important for employers to closely monitor developments regarding a pending case involving the interpretation of the “day of rest” provision. The California Supreme Court was asked to clarify the meaning of the “day of rest” provision at issue in Mendoza v. Nordstrom, Inc. On February 7, 2017, the California Supreme Court heard oral argument and the case was submitted to the Court. As a result, the Court will likely issue a decision in 2017. The California Supreme Court was asked to answer three questions:

1.   California Labor Code 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?

      The results can vary greatly depending on how the seven-day period is calculated and interpreted. For example, if a “day of rest” is only required once every workweek, an employer could schedule a day-off the first day of one work week and the last day of the next work week, which means the employee could work more than seven consecutive days in a row. The question becomes: is the seven-day period construed to be any consecutive seven days (i.e., a

      rolling basis), or defined by the employer’s seven day payroll work week.

2.   California 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.”  Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?

      The Court will need to decide what the key words “provide” and “any” mean with respect to the exemption. Does this exemption mean an employer need not provide a day of rest if an employee works less than six hours in “any” single day of the applicable week?  Does the word “any” mean “one” day in the week? These are the type of questions that need to be answered.

3.   California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.”  What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

      The Court will likely decide the situation if employees can voluntarily work more than six days in seven as opposed to being scheduled by their employer to work the time. The trial court determined the employees voluntarily waived the right to a day of rest by accepting additional shifts on their days-off. We will see how the California Supreme Court will treat the issue.

Employers should monitor these developments for clarification of the “day of rest” provision. Employers should also consult with their counsel about the applicability of Labor Code section 554(a) which allows employers to accrue rest days “when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”  Employer could possibly explore whether Section 554(b) could be helpful. This Section provides a “hardship” exemption through the California Division of Labor Standards Enforcement (DLSE).

Employers should review their “day of rest” work practices to determine the proper course of action in light of AB 1066. This is just one of many unanswered questions arising out of AB 1066 for agriculture employers.


Jonathan Siegel is a shareholder at the Orange County Office of Jackson Lewis P.C. representing employers with respect to workplace law.