Clarity in the “Right to Rest” Rule
As all employers know (or should know), under California law employees are entitled to “one day’s rest in seven.” This rule, known as the “right to rest,” may sound simple enough, but in practice the rule leaves some important questions unanswered. For example, is the seven day work period calculated per workweek or does it apply to any consecutive seven day period? The California Supreme Court recently answered this question and two others and it is important for employers to take note of the new rules.
The two statutes at issue in this update are Labor Code sections 551 and 552 which read as follows:
551: Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.
552: No employer of labor shall cause his employees to work more than six days in seven.
Significantly, Sections 551 and 552 do not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day. (Labor Code § 556.)
In Mendoza v. Nordstrom, Inc. (9th Cir. 2015) 778 F.3d 834; the California Supreme Court was asked to answer the following questions about Sections 551 and 552:
1. Is the day of rest required by sections 551 and 552 calculated by the workweek (i.e. Sunday through Saturday), or does it apply on a rolling basis to any seven-consecutive-day period?
2. Does the section 556 exemption for workers employed six hours or less per day apply so long as an employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the week?
3. What does it mean for an employer to “cause” an employee to go without a day of rest (§ 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?
The Supreme Court provided straight-forward answers which employers should take note of:
1. A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.
2. The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on 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.
3. An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.
These results not only provide clarity, but they also strike benefits for both employers and employees.
These rules mean that scheduling will only require an employer to look at the work week rather than having to worry about a rolling period. The alternative would have made for a scheduling nightmare for employers, who would have otherwise had to worry about calculating each employee’s work schedule and history individually. This would have been especially difficult in an emergency situation where an employer’s primary concern may be filling a need rather than double checking the employee’s past seven-day work period.
These rules also allow employees to work more than seven days in a row if they are given time off equivalent to one day’s rest in seven days, which also gives employers more flexibility when it comes to scheduling.
One significant item for employers to note after this ruling is that they should be sure to designate their workweek. If an employer does not set a designated workweek, the law presumes a workweek of 12:01 a.m. Sunday to midnight Saturday.
Another point to consider for employers is that there are increased overtime pay requirements if an employee chooses to work seven consecutive days in a workweek. These requirements call for time and one half for the first eight hours worked on the seventh consecutive day of the workweek and double time for hours worked beyond eight.
One point of ambiguity going forward is the Supreme Court’s holding that an “employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.” In interpreting the word “cause” this way, there may be a potential pitfall for employers because it is unclear what conduct could violate the “absolute neutrality” requirements.