If My Employees Work 7 Days In A Row, What Do I Owe?
Posted July 18, 2018

The Ninth Circuit, relying on guidance from our California Supreme Court, recently affirmed the dismissal of two former employees’ representative action against Nordstrom for alleged violations of the “day of rest” rules (set forth in Labor Code section 551 and 552). This case provides employers with three key scheduling insights:

1. Is the “day of rest” calculated on a workweek basis, or does it apply on a rolling basis to any seven-consecutive-day period?

The day of rest is determined by the employer’s selected workweek, and not on a rolling basis. For example, the workweek with Company X is Sunday through Saturday. Over a two-week period, an employee worked Tuesday through Monday. Although this is seven consecutive days of work, it is not a violation of the “day of rest” rule. Instead, the employee is considered have worked 5 days (Tuesday through Saturday) during the first week and worked 2 days (Sunday and Monday) during the second week. With a bit of strategic scheduling, an employer (using the work week noted above) could work an employee 12 consecutive days, without violating the “day or rest” rules:

  Sunday Monday Tuesday Wednesday Thursday Friday Saturday
Workweek 1 Rest Work Work Work Work Work Work
Workweek 2 Work Work Work Work Work Work Rest

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?

The exemption only applies when an employee does not exceed six hours of work on any day during the workweek. This means that the employee must work shifts of six hours or less for all shifts worked during the workweek for the exemption to apply. If the employee worked a shift of 6.1 hours or more, then the employee must be provided a day of rest after six consecutive days within the workweek.

3. What does it mean for an employer to “cause” an employee to go without a day of rest?

Notably, the law (Section 552) only prohibits an employer from causing any employee to go without one day’s rest in seven. The California Supreme Court said that to be found to “cause” an employee to go without a day of rest, the employer must have “induce[d] the employee to forgo rest to which he or she is entitled.” The Court further clarified that an employer does not violate the “day of rest” rule if the employer fully apprises the employee of his or her rights to a day of rest and the employee independently chooses not to take the day of rest.

All employee handbooks should define the company’s established workweek (a period of seven consecutive periods of 24-hours; the most common workweek is Sunday to Saturday), and a day of rest policy. If a company decides to allow its employees to voluntarily work on a seventh consecutive day in the workweek (employee’s choice), consider creating a form which codifies the employee’s voluntary decision to work on the seventh day and apprises the employee of . . . “the entitlement to [a day of] rest, [and the employee’s ability to] independently choose not to take a day of rest.”

For additional information or guidance on this new clarification of the “day of rest” rule, contact the employment attorneys at LightGabler.

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