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Consecutive days of work law

California law regarding consecutive days of work to be clarified.

The Ninth Circuit Court of Appeals has requested that the California Supreme Court decide three issues concerning California law that regulates consecutive days of work. In Mendoza v. Nordstrom, Inc. (9th Cir. Cal. Feb. 19, 2015) 2015 U.S. App. LEXIS 2551, the federal appeals court certified the following questions for review by the California high court:

  1. 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?

  2. 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?

  3. 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?

These questions arise from a lawsuit alleging that Nordstrom violated California Labor Code sections 551 and 552 by failing to provide two employees with one day’s rest in seven on three occasions. The district court decided that the required day of rest under section 551 is calculated on a rolling basis; the section 556 exemption applies when the employee works less than six hours in any one day of the week; and that Nordstrom did not cause the employees to work more than six days in seven because there was no coercion.

The Ninth Circuit directed the three questions to the California Supreme Court based on the ambiguous text of the statutes and the lack of legislative history and California court decisions to help answer the questions. The California high court’s answers to the questions will, as the Ninth Circuit noted, affect tens of thousands of employees.


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