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Most nonexempt workers in the state are entitled to one day off every workweek
California employees are entitled to one day of rest in seven, but the state labor code isn't clear about how that seven-day period should be measured. On May 8, the California Supreme Court delivered some good news for employers: The day of rest must be given in a workweek, not on a rolling basis for any consecutive seven-day period.
This ruling means that if an employer's workweek runs from Sunday to Saturday, it's not a problem for an employee to be scheduled to work every day from Wednesday to Wednesday—even though that's more than seven consecutive days of work, said Sandy Rappaport, an attorney with Hanson Bridgett in San Francisco. "The calculation is based on one day of rest in the workweek, and there's no per se prohibition on scheduling seven days of work that go across multiple workweeks."
The state high court's decision on this question benefits employers because it provides clarity, said Gina Haggerty Lindell and Debra Ellwood Meppen, attorneys with Gordon & Rees in Irvine, Los Angeles and San Diego.
[SHRM members-only toolkit: Complying with California Wage Payment and Hours of Work Laws]
Nordstrom retail employees filed lawsuits claiming that they occasionally had to cover other workers' shifts, which impermissibly caused them to work seven consecutive days without a break.
The employees argued that the California "day of rest" rule should apply on a rolling basis—otherwise, employees could be required to work up to 12 consecutive days without a day off. But the court disagreed and said the proper measurement period is the employer's workweek.
The court gave even more work-scheduling flexibility to employers by saying that employees must average no less than one day of rest for every seven over the course of a calendar month, Rappaport noted.
"If at one time an employee works every day of a given week, at another time shortly before or after she must be permitted multiple days of rest in a week to compensate, and on balance must average no less than one day's rest for every seven, not one for every 12," the court said.
For a large retailer like Nordstrom, that makes it a lot easier from a scheduling perspective to ensure employees are provided their rest day.
Some part-time employees don't have to be offered a day of rest, but the exception to the rule is also vague. The labor code says that employers aren't required to give workers 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."
So does "six hours in any one day" mean for every day of the workweek or just for one? The California Supreme Court clarified that part-time employees are exempt if they never work more than six hours in any day of the workweek.
"If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply," the court said.
This outcome is generally more beneficial to employees, but the silver lining for employers and their attorneys is that "we now know and understand exactly what we need to look for," Meppen said.
Rappaport noted that there is another exception that wasn't mentioned in the case for rest-day policies made pursuant to a collective bargaining agreement—those may trump the labor code provisions.
California law also says that an employer can't "cause" an employee to go without the day of rest, and the state high court weighed in on what "cause" means.
"The court essentially said that the employer isn't going to be liable simply by allowing an employee to choose not to take the day of rest," Rappaport said. "But if the employer is doing anything to motivate the employee not to take a day of rest, it could be liable."
Nordstrom had argued that "causing" means "forcing" or "requiring," but the court said that interpretation is too narrow because there are a lot of ways an employer can implicitly require employees to forego a day of rest, she explained.
This is a gray area because it will take an individual inquiry into each employee's circumstances to determine whether an employer caused a worker to skip the day off, Lindell said.
For example, did the employer provide more favorable schedules to employees who chose to give up their day of rest or assign a poor performance rating to those who didn't?
An employer can get into trouble if it ends up with a record that looks like workers were getting implicitly rewarded or punished based on their decision, Rappaport said.
On the positive side for employers, the case-by-case analysis that this ruling requires means that it may be more difficult for employees to get a class action certified, Lindell noted.
On an employee-by-employee basis, workers could be in slightly different roles or report to different managers, and therefore the factual interpretation could be different for each plaintiff, Meppen added. "It will be interesting to see how this plays out."
Although the ruling leaves room for interpretation as to what constitutes "cause," there are actions employers can take to protect themselves, Rappaport said. For example, they can have a sign-up sheet for employees who want to work additional days, and the sheet could state that the work is voluntary and not a requirement of employment.
Employers may want to send a companywide e-mail explaining that they will not require employees to work on a seventh day in the workweek and telling employees the steps they need to take if they want to voluntarily work a seventh day, Meppen said.
She cautioned that employers should check with counsel to make sure the documentation they are creating is compliant. "It's worse to think you are protecting yourself when you are actually saying something that could be harmful."
The case is Mendoza v. Nordstrom, Cal., No. S22461 (May 8, 2017).
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