In addition to establishing an overtime pay phase-in for wage order 14 employees, AB 1066 also eliminated other longstanding exemptions. This included eliminating the exemption to the seventh day rest requirement, which provides that employees are entitled to one day’s rest in every seven days. Under the California Labor Code, employers cannot “cause” their employees to work more than six days in every seven. However, at the time of AB 1066’s passage, there was no accepted interpretation of what “cause” meant, although the matter was before the California Supreme Court.
Just this week, on May 8, 2017, the Court, in Nordstrom v. Mendoza, finally answered that key question, finding that an employer only “causes” its employee to go without a day of rest if it “induces” the employee to do so. An employer does not violate the requirement by permitting an employee, who is fully apprised of their right to rest, to independently choose to work. Put another way, an employer does not violate the law if they tell employees they are entitled to the day of rest, and is neutral about whether the employee decides to take the day off or not. However, if an employer encourages its employee in any way to forgo that day of rest, it is actively causing the employee to go without that day of rest, in violation of the law.
In its decision, the Court also held the following: 1) The guaranteed day of rest is determined by the usual workweek and not by how many consecutive days an employee has worked; and 2) the seventh day rest requirement does not apply if an employee has worked less than 30 hours in a week and less than six hours on each day of that workweek.
COUNSEL TO MANAGEMENT:
The Nordstrom decision represents a rare win for employers, and especially those in the agricultural industry who rely on employees working a seventh day due the seasonal nature of their operations. Those employers who choose to permit employees to volunteer to work on a seventh day should consider the use of a voluntary employee sign-up sheet and should consult with legal counsel regarding the adoption of additional policies to ensure compliance with the law. Here is an updated version of the Saqui Law Group’s voluntary employee sign-up sheet. When using the sign-up sheet, make sure to fill in the employer name, the date volunteers will be needed, how employees will be selected if too many volunteer (e.g., seniority, first come first serve, etc.), and who will notify volunteers if they are needed to work. Foremen and supervisors should inform crews that if anyone is interested in voluntarily picking up extra hours they can do so by signing the sign-up sheet and that no one should fear any reprisals for exercising their right to take their day of rest. Make sure that the sign-up sheet is put in a neutral location, such as hanging on a clipboard in a break or lunch area, and that the foremen and supervisors do not apply any pressure on employees to sign the sign-up sheet. If you have any questions about the seventh day rest requirement or how the Nordstrom decision affects your Company’s seventh day rest policies, please contact the experts at the Saqui Law Group.