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May 2017

Gordon & Rees Employment Law Partners Quoted in SHRM article on California Supreme Court’s Ruling on "Day of Rest" Law for Employers

Chair of the firm's National Labor and Employment Law Practice Group Debra Ellwood Meppen and Co-chair of the firm's Southern California Employment Law Practice Group Gina Haggerty Lindell were quoted in an article entitled, "California Supreme Court Clarifies 'Day of Rest' for Employers" in the May 17th issue of the Society for Human Resources Management online publication.

This article stems from the discussion surrounding the recent May 8th California Supreme Court ruling in Mendoza v. Nordstrom.  The case featured claims brought by Nordstrom retail employees who asserted that they occasionally had to cover other workers' shifts, which impermissibly caused them to work seven consecutive days without a break. The above referenced article delves into the consequences of the Court’s holding by analyzing the impact on employers and employees alike, specifically as it pertains to schedule flexibility and exceptions to the ruling, such as those who fall within the part time employee category.

As its’ title suggests, this publication clarifies how an employer must handle the scheduling of a non-exempt employee’s day of rest. The Court defines the parameters of a day of rest, stating  'the day of rest must be given in a workweek, not on a rolling basis for any consecutive seven-day period.'  Practically speaking, this means that if an employer schedules their workweek from Sunday to Saturday, an employee can legally be scheduled to work every day, for example, from Wednesday to Wednesday, even though that is more than seven consecutive days of work – provided, however, that the employee received their day of rest on another date within the scheduled workweek.  In short, there is no per se prohibition on scheduling seven days of work so long as the employee’s schedule spans over more than one workweek.

"This outcome is generally more beneficial to employees, but the silver lining for employers and their attorneys is that we now know and understand exactly what we need to look out for," said Meppen.

The article also explores the 'gray area' of the ruling, notably, those circumstances which would cause an employee to go without a day of rest.  For example, did the employer offer an incentive to an employee to go without a day of rest? Or, was the additional day worked solely within the employee’s discretion?  Lindell explains, "this is a gray area because it will take an individual inquiry into each employee's circumstances to determine whether an employer caused a worker to skip their day off.”  Lindell also adds “On the positive side for employers, the case-by-case analysis that this ruling requires means that it may be more difficult for employees to get a class action certification."

Meppen offered employers the following concrete suggestions to protect its workforce from liability,  "employers may want to send a companywide e-mail explaining that they do not require employees to work on a seventh day in the workweek. Additionally employers can advise employees of the affirmative steps they need to take if they want to voluntarily work a seventh day." Meppen further cautioned that employers should check with their own employment counsel to make sure the documents created are entirely compliant with respect to current day of rest policies.

To read the article in full, please click here.

Debra Ellwood Meppen