Did you know that, under the California Labor Code § 552, employers are prohibited from “causing” non-exempt employees to work more than six days in seven? This prohibition does not apply to a non-exempt employee whose total hours of employment for the week do not exceed thirty hours or six hours in any one day for the seven-day period.
As drafted, the code section has significant ambiguity, specifically the following questions which arose in the case of Mendoza v. Nordstrom, Inc.:
- Is the seven days intended to be a calendar workweek or a rolling seven-day period?
- What does “cause” really mean?
The California Supreme Court in Mendoza provided answers to these questions. In looking at the first question, the employee argued that since the California Labor Code is intended to be protective of employees, the Court must apply the seven-day rolling basis. The Court rejected this argument, instead looking at the legislative history which it determined intended for this provision to apply to a workweek. Thus, employees are entitled to one day of rest during the seven-day workweek. For an employer with an established Monday to Sunday workweek, it would be permissible for an employee to work every day between Tuesday and Sunday without running afoul of the seventh day of rest rule.
The California Supreme Court also addressed the question of the true meaning of “causing” any employee to work seven days in a workweek. The court determined an employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which the employee is entitled. An employer is not forbidden from permitting or allowing an employee independently to choose not to take a day of rest so long as the employee is fully informed of the entitlement to a day of rest. Based on this interpretation, an employer should not affirmatively schedule or require employees to work more than six days in a workweek. However, offering employees the opportunity to work a seventh day is permitted, so long as the employee is apprised of their entitlement to one day’s rest in each workweek and that the employee is notified that they will not be penalized for declining to work the seventh day. Remember, however, if the employee elects to work the seventh day in the workweek, special overtime rules will apply (time and a half for the first eight hours of work, and double time for hours in excess of eight).
California employers should consider reviewing their scheduling practices, adding the rest entitlement to their handbooks, and drafting of a template notice to any non-exempt employee who has worked the prior six days in the work week before the employee works the seventh day.