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Ninth Circuit certifies questions over provisions governing day of rest to California high court

By Kathleen Kapusta, J.D.

Asking the California Supreme Court to exercise its discretion to decide questions of extreme importance to tens of thousands of employees in that state, and explaining that the answers to those questions would be dispositive of the appeal before it, the Ninth Circuit certified to the state’s highest court three questions concerning the interpretation of several labor code provisions governing an employer’s obligation to provide its employees with a day of rest (Mendoza v. Nordstrom, Inc., February 19, 2015, Graber, S.).

No day off. Two Nordstrom employees alleged that they were required to work more than six consecutive days without a day of rest in violation of California’s Labor Code; one employee claimed that this occurred on three occasions while the other alleged that it happened to him once. As to the first employee, he was not originally scheduled to work more than six consecutive days but he did so after being asked by either his supervisor or a coworker to fill in for someone else. On all occasions in which they worked more than six consecutive days, they each worked less than six hours on at least one of those days.

Asserting that it violated California Labor Code Sections 551 and 552 by failing to provide him with one day’s rest in seven on three occasions, the first employee brought suit against Nordstrom on behalf of a class of similarly situated hourly, nonexempt Nordstrom employees in California. He also brought a claim pursuant to the state’s Private Attorneys General Act. The second employee’s complaint in intervention alleged the same causes of action.

Lower court proceedings. Dismissing the action after a bench trial, the district court ruled that the day of-rest statute, California Labor Code Section 551, applies on a rolling basis to any consecutive seven-day period, rather than by the workweek. It found, however, that California Labor Code Section 556 exempted Nordstrom from that requirement because each employee worked less than six hours on at least one day in the consecutive seven days of work. Even if the exemption did not apply, the lower court found that Nordstrom did not “cause” the employees to work more than seven consecutive days within the meaning of California Labor Code Section 552 because there was no coercion and the employees waived their rights under California Labor Code Section 551 by accepting additional shifts when they were offered.

Certified questions. On appeal, the Ninth Circuit certified three questions to the California high court: “(A) 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? (B)  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? (C) 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?”

Day of rest. Observing that no controlling California precedent answers any of the certified questions of statutory interpretation, the court noted that the text of the applicable statutes was ambiguous, it was not aware of any pertinent legislative history, and the answer to the certified questions was not obvious. As to the day of rest requirement, it was unclear whether the statute applied to any consecutive seven days or to a workweek. Here, the court pointed out that while neither Section 551 nor Section 552 used the term “workweek,” it was used in surrounding provisions of the labor code, demonstrating that the legislature could have used the workweek concept had it intended to do so. Moreover, the court stated, “the purpose of the law plainly is to avoid overworking employees by providing a regular day of rest in most circumstances. Allowing 12 consecutive days of work every two weeks could run counter to that purpose.”

On the other hand, noted the court, Section 510(a), pertaining to overtime, provides in part that “any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.” This, the court reasoned, hints both that the concept of working a seventh day encompasses the concept of the workweek and that the prohibition on working seven days is not absolute. Citing to Wage Order No. 7, which states that “[a]n employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweek do not exceed 30 and the total hours of employment in any one workday thereof do not exceed six (6),” the court found that the phrasing of this suggested obliquely—but by no means directly—that Sections 551 and 552 apply to a workweek and that the overreaching purpose of the law can be met when an employee receives four days off per month.

Here, the appeals court found that both interpretations were plausible and the question affects nearly all California employers.

Exemption. Turning to Section 556, which exempts an employer from the day-of-rest requirement “when the total hours [worked by an employee] do not exceed 30 hours in any week or six hours in any one day thereof,” the court found that grammatically, “the second half of that formulation is ambiguous.” While to the court, the more natural reading of the words is that 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, it pointed out that “any” can also mean “each” or “all.” Noting that the purpose of the statute is to exempt an employer from providing a day of rest only with respect to part-time employees, the court once again found both interpretations plausible, no useful legislative history, and no California appellate case to guide it. “And once again, the obligations of thousands of California employers, and the rights of tens of thousands of California workers, are at stake,” wrote the court.

“Cause” to work. Explaining that pursuant to Section 552, an employer may not “cause” its employees to work more than six days in seven, the court noted that the district court relied on Brinker Rest. Corp. v. Superior Court—in which the California Supreme Court held that an employer must relieve an employee of all duty during meal and rest breaks, but that the employer has no duty to ensure that the employee does not in fact choose to continue to work during that time—to conclude that so long as an employee is not compelled to work in violation of the day-of-rest statute, the employer has not violated the statute. Brinker, however, involved different statutory text, the court here noted, stating that it was unpersuaded that Brinker provided guidance here. Once again, the court pointed out that the statutory text at issue was unclear and that California employers and employees need to know what the statute means.

Stating that it was uncertain as to whether the district court correctly or incorrectly interpreted the relevant statutes, the appeals court observed that “the consequences of any interpretation of the day-of-rest statutes will have profound legal, economic, and practical consequences for employers and employees throughout the state of California and will govern the outcome of many disputes in both state and federal courts in the Ninth Circuit.” Therefore, it found that these questions were worthy of decision by the California Supreme Court.