Dave’s Desk: Day of Rest

Dave’s Desk: Day of Rest
July 5, 2017 Laura Fickle

Day of Rest Interpreted

 

State Supreme Court Interprets “Day of Rest”
Recently the California Supreme Court reviewed and defined a 120-year-old statute which states that an employee in California must have at least 1 day rest in 7 days.  For most of the 120 years this has been interpreted as averaging 1 day off in 7 (thus requiring 4-5 days off each month).  However, with much of the recent tightening of rules by the State Labor Commissioner and courts; employers were left to wonder whether this was sufficient.  The exceptions allowing the average of 1 day in 7 over the course of a month were challenged in the recent case of Mendoza v. Nordstrom’s.  Christopher Mendoza was a barista and sales clerk at a Nordstrom’s department store and ended up working 11 days in a row without a break.  He sued Nordstrom’s citing the California Labor Code Section entitling employees to 1 day of rest every 7 days, and the matter wound up before the State Supreme Court.

Work Week Cycles vs. 1-in-7
Mendoza argued that employees had a right to 1 day off in every 7 days, except on rare occasions.  Nordstrom’s argued that an employee only had to have 1 day off every 7-day work cycle.  They contended that in a 2-week work cycle, for example, the day off in the 1st week could be at the beginning of the week and the second day off could be at the end of the 2nd week, thus resulting in a long stretch in between of work without a day off.  The State Supreme Court eventually sided with Nordstrom’s and held that 1 day off in 7 was really 1 day off per work week and could occur at the beginning of one week, and at the end of the following 7-day period.

Extra Shifts Eligible for Rule?
Another issue focused on whether it was Nordstrom’s responsibility that Mr. Mendoza worked 11 days in a row since he picked up extra shifts for other workers.  Mr. Mendoza argued that the employer violated the law simply by permitting an employee to work the additional time.  Nordstrom’s argued that they did not “cause” Mr. Mendoza to work without a day of rest, but merely “permitted” him to do so.

Know Your Exceptions
In the end, the State Supreme Court refused to adopt either of these positions and held that employers must fully apprise employees of their right to a rest day, and then remain neutral as to whether the employees choose to exercise that right.  An employer, according to this case, cannot encourage the employee to work without a day of rest, but does not face liability if the employee voluntarily decides to do so.  Other exceptions exist, but all employers should review their scheduling practices and keep the 1 day rest in 7 in mind when setting up work schedules.

For further information regarding these requirements and/or assistance in drafting, please contact Dave Cohen at Cohen Durrett/The Employers’ Council (916) 927-8797.  Power Inn Alliance members receive a complimentary initial consultation.

cohen

Legal information graciously provided by:

David L. Cohen
dcohen@CohenDurrett.com

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