Founder and Managing Partner
Senior Associate Attorney
Under California’s Labor Code (Sections 551 and 552), employees are entitled to one day's rest in seven, and employers are not permitted to cause employees to work more than six days in seven. These rules do not apply in a week in which the employee didn’t work more than 30 hours or more than 6 hours on any day of that week (Section 556). These rules also do not apply when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day's rest in seven.
Last month, in Mendoza v. Nordstrom, Inc., the California Supreme Court clarified the following unresolved issues under the above rules in a unanimous 7-0 decision.
Is the day of rest required by Sections 551 and 552 based on each separate pre-designated workweek, or does it apply on a rolling basis to any consecutive seven-day period?
It is based on the pre-determined work week, not on a rolling seven-day period. This is consistent with the Industrial Welfare Commission Wage Order provisions pertaining to premium pay for the seventh day of work within a work week. The Industrial Welfare Commission defines a “workweek” as: “Any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring….. An employer may establish different workweeks for different employees, but once an employee's workweek is established, it remains fixed regardless of his or her working schedule. So, if the workweek runs from Monday through Sunday, and an employee works Tuesday, Wednesday, Thursday, Friday, Saturday and Sunday in the first week, the employer does not have to provide the following Monday off.
Does the exception under Labor Code Section 556 for employees working six hours or less per day apply if an employee works six hours or less on at least one day of the applicable week, or does it apply only if an employee works no more than six hours on each and every day of that week?
The exception applies only if an employee works no more than six hours on each and every day of that week. Therefore, if an employee works more than 6 hours on any one day in that workweek, the exception does not apply and a day of rest must be provided (assuming no other exception applies). For example, if during a Monday through Sunday workweek, the employee works 4 hours on each of the days from Monday through Sunday, no day of rest is required for that workweek. If, however, the employee works 4 hours for each of the days of Monday through Friday, but works 7 hours on Saturday, the employee should receive a day of rest on Sunday.
Does the exception under Labor Code Section 556 apply to an employee whose work shifts do not exceed six hours on any day of the workweek or when the employee’s total work hours do not exceed 30 hours in any week? Or must both criteria be met for the exception to apply?
Both criteria must be met. As such, this exception applies only to an employee who worked no more than 30 hours in a given workweek and six hours per day during that same workweek. For example, in a Monday through Sunday workweek, if an employee worked 5.5 hours for each day from Monday through Saturday, even though the employee worked less than 6 hours each of those days, the total hours for that workweek exceeded 30 hours and therefore the Section 556 exception does not apply and the employee should receive a day of rest on Sunday.
Dealerships should keep these rules in mind when developing work schedules. These rules may be especially pertinent for work weeks that employees are expected to work their normal weekday shifts plus extra shifts for special weekend sales events. It is also important to follow the 7th day premium pay requirements set forth in the applicable Wage Order should an employee work seven consecutive days. Specifically, a non-exempt employee is entitled to one and one-half times the employee's regular rate of pay for the first eight hours worked on the seventh consecutive day of work in a workweek and double the employee's regular rate of pay for all hours worked in excess of eight on the seventh consecutive day of work in a workweek. Any questions or concerns about compliant scheduling and pay practices can be directed to knowledgeable employment counsel.