Mendoza v. Nordstrom, Inc.
California’s day-of-rest guarantee runs by the workweek, not on a rolling seven days; the six-hour exemption applies only to employees who never work more than six hours on any day of that week; and an employer “causes” a lost day of rest by inducing the employee to forgo it, not by staying neutral while an informed employee chooses to work.
Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074
Wage & Hour
Day of rest
Lab. Code §§ 551, 552, 556
In brief. Answering three questions certified by the Ninth Circuit, a unanimous Supreme Court held: “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.”; “The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek.”; and “An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1078.) The result is a split decision: the employer wins the workweek question, the employees win the six-hour exemption, and the third answer imposes a duty of “absolute neutrality.” (Id. at p. 1091.)
By Jonathan J. Delshad
Founder & Editor-in-Chief
Facts
The statutes. The day-of-rest scheme, Labor Code sections 550 through 558.1, rests on two provisions. Section 551: “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Section 552: “[n]o employer of labor shall cause his employees to work more than six days in seven.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1080.) The guarantee is not absolute. Section 554, subdivision (a) allows an accumulation of rest days “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,” and subdivision (b) authorizes hardship exemptions. Section 556 removes the guarantee “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.” (Id. at pp. 1078, 1084, 1087.)
Two definitional provisions matter. Section 500, subdivision (b) defines a “week” and a “workweek” as “any seven consecutive days, starting with the same calendar day each week” — “a fixed and regularly recurring period,” not a rolling seven days. (Mendoza, supra, 2 Cal.5th at p. 1084.) And section 510, subdivision (a) affords premium pay for “the first eight hours worked on the seventh day of work in any one workweek,” with double time beyond eight hours on that day. (Ibid.)
The employees. Christopher Mendoza worked as a barista and later a sales representative for Nordstrom in San Francisco and San Diego; Meagan Gordon was a sales associate in Los Angeles. Mendoza was asked on several occasions by a supervisor or coworker “to fill in for another employee, with the result that he worked more than six consecutive days.” During each stretch, “some but not all of Mendoza’s shifts lasted six hours or less.” Gordon worked more than six consecutive days at least once, again with some but not all shifts of six hours or less. (Mendoza, supra, 2 Cal.5th at p. 1079.) Nordstrom’s established workweek ran Sunday to Saturday, and Mendoza’s runs of consecutive days spanned two workweeks. (Id. at p. 1079, fn. 3.)
That factual posture is what made the case: the employees had not worked seven days within any single established workweek, and none of them had gone an entire week without a shift of six hours or less. Whether they had a claim depended entirely on how the statutes were construed.
Procedural history
Mendoza sued in state court, alleging that Nordstrom violated sections 551 and 552 by failing to provide statutorily guaranteed days of rest. The action was pleaded as a putative class action and the day-of-rest claim was brought under the Private Attorneys General Act. Nordstrom removed on diversity grounds; the parties then stipulated to Gordon filing a complaint in intervention, likewise a putative class action with a PAGA claim under sections 551 and 552. (Mendoza, supra, 2 Cal.5th at p. 1079.)
After summary judgment was granted on the non-day-of-rest claims, the plaintiffs withdrew their certification motion because PAGA authorizes a representative action without class certification. Following a bench trial the district court concluded that section 551 guarantees a day of rest “on a rolling basis, for any seven consecutive days”; that under section 556 the guarantee did not apply because each plaintiff had at least one shift of six hours or less; and that Nordstrom “did not ‘cause’ Mendoza or Gordon to work more than six consecutive days because it did not force or coerce them to do so.” The action was dismissed. (Mendoza, supra, 2 Cal.5th at p. 1079.)
On appeal the Ninth Circuit certified the three questions under rule 8.548 of the California Rules of Court, and the Supreme Court granted the request, noting that it had “reframed these inquiries slightly.” (Mendoza, supra, 2 Cal.5th at pp. 1078 & fn. 2, 1080.) The disposition is an answer, not a judgment: “We answer the certified questions as set out on page 1078, ante, and as amplified by our subsequent discussion.” (Id. at p. 1092.)
Issue
As reframed by the court: (1) “Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?” (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?” (3) “What does it mean for an employer to ‘cause’ an employee to go without a day of rest (§ 552): force, coerce, pressure, schedule, encourage, reward, permit, or something else?” (Mendoza, supra, 2 Cal.5th at p. 1078.)
Holding
All three answers appear on a single page, and the court’s own conclusion cites that page: “We answer the certified questions as set out on page 1078, ante.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1092.) 1. Workweek, not rolling. “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.” (Id. at p. 1078.) Elaborated: sections 551 and 552 “are most naturally read to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.” (Id. at p. 1086.) 2. The six-hour exemption is a floor for every day. “The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.” (Id. at p. 1078.) Elaborated: the exception “is satisfied only if every daily shift that week has entailed six hours or less of work.” (Id. at p. 1090.) 3. “Cause” means induce. “An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.” (Id. at p. 1078.) The operative duty: “an employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.” (Id. at p. 1091.) What the court expressly declined to decide: whether section 556’s weekly and daily limits are conjunctive or disjunctive — “the Ninth Circuit has not asked us to address” it, “[n]or need we do so in order to explain the meaning of the daily limit.” (Id. at p. 1088.)
Reasoning
1. The text does not answer the first question. “We begin with the text, but find it manifestly ambiguous.” A promise of no more than six days in seven could bar a seventh consecutive day whenever six have been worked, or could guarantee one rest day each week. Neither section contains the word “week,” which the employees stressed; but had the Legislature meant to reach any seven consecutive days “it could have chosen more specific language that, unlike the phrase ‘more than six days in seven’ (§ 552), does not evoke the concept of a day of rest each week.” (Mendoza, supra, 2 Cal.5th at p. 1080.)
2. History explains the statute’s silence but not its meaning. The court traced the 1858, 1861 and 1872 Sunday-closing laws, their constitutional difficulties in Ex parte Newman and Ex parte Koser, and the 1893 statute that “departed from prior statutes by providing for a day of rest without specifying which day should be taken,” thereby meeting the objection “that legislating a uniform weekly day of rest favored some religions over others.” But the neutrality inference cuts no ice on the present question, since religious rest days “typically recur on the same day each week,” so the statute “could be understood as extending a guarantee of a day of rest every week, on a day of the individual’s choosing, or, equally, a day of rest at least every seventh day.” (Mendoza, supra, 2 Cal.5th at pp. 1080–1081.)
3. The wage orders supply the answer. The court begins from its own premise that Labor Code provisions “are not to be construed in isolation, but in harmony with a second set of rules governing employment,” and then takes the status of those rules wholesale from Brinker: “The IWC’s wage orders are to be accorded the same dignity as statutes. They are ‘presumptively valid’ legislative regulations of the employment relationship [citation], regulations that must be given ‘independent effect’ separate and apart from any statutory enactments [citation]. To the extent a wage order and a statute overlap, we will seek to harmonize them, as we would with any two statutes.” (Mendoza, supra, 2 Cal.5th at pp. 1081–1082, the block quotation quoting Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1027.) The 1919 mercantile order barred employing a woman or minor “more than six (6) days in any one week”; the 1943 order provided “[e]very woman and minor shall have one day’s rest in seven” with Sunday presumed. (Id. at p. 1082.)
Those orders are “telling in two respects.” First, the IWC — regulating what the Legislature saw as a more vulnerable workforce — “guaranteed only a weekly day of rest rather than at least one day of rest every seven on a rolling basis,” and the court “can safely infer the IWC did not intend less day of rest protection for women and children than for the general employee population.” Second, the 1943 order “uses language materially indistinguishable from the statutory guarantee, and interprets that language as ensuring a weekly, rather than rolling, day of rest.” (Mendoza, supra, 2 Cal.5th at p. 1082.) When the IWC’s jurisdiction expanded to adult men in 1976 it added an explicit definition of “workweek” as “any seven (7) consecutive days, starting with the same calendar day each week,” confirming weekly operation. (Id. at p. 1083.) Harmonizing “subjects employees and employers to a single set of consistent day of rest requirements, thereby facilitating the scheduling of work,” and does not create redundancy, since the sanctions differ — misdemeanor and civil penalties under the Labor Code, premium pay under the wage order. (Id. at p. 1083.)
4. The overtime statute is the structural clincher. Section 510 affords premium pay for “the seventh day of work in any one workweek,” which means premium pay “is available not on a rolling basis, for any seventh consecutive day of work, but only for employees who must work every day of an employer’s established regularly recurring workweek.” If overtime is the Legislature’s designed compensation for a lawfully forgone rest day, then the class of workers entitled to it should match the class the guarantee protects. “The logical inference is that the Legislature views only a seventh day of work during an established workweek as an exception to sections 551 and 552, and intends the day of rest guarantee to apply on a weekly basis.” (Mendoza, supra, 2 Cal.5th at pp. 1084–1085.) The alternative would mean the Legislature intended premium pay for some rest-deprived employees and not others “based on the fortuity of how their work schedules fell in relation to the employer’s established week.” (Id. at p. 1085.)
5. Two answers to the obvious objection. The court addressed the fear that a weekly reading lets employers schedule twelve straight days. Section 554, the court answered, “provides employers and employees some latitude, but ensures that over the course of every calendar month an employee must receive ‘days of rest equivalent to one day’s rest in seven,’” so an employee who works a full week “must be permitted multiple days of rest in a week to compensate, and on balance must average no less than one day’s rest for every seven, not one for every 12.” (Mendoza, supra, 2 Cal.5th at pp. 1086–1087.) And while wage and hour laws are to be given liberal effect, “[e]xamination of that object . . . reveals the Legislature intended to ensure employees, as conducive to their health and well-being, a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.” (Id. at p. 1087.)
6. Surplusage decides the six-hour question. On question two the court applied two canons — read language in context, and avoid surplusage — and acknowledged that both readings of “any one day” are “grammatically permissible,” illustrating with a pair of overtime sentences in which “any one” means “at least one” in the affirmative and “each” in the negative. (Mendoza, supra, 2 Cal.5th at pp. 1087–1088.) It then showed that Nordstrom’s reading fails under either possible syntax. Read disjunctively, Nordstrom’s version makes the daily limit useless, because an employee working 30 or fewer hours across seven days “averages less than 4.3 hours per day and necessarily will have had at least one day of six hours or less; to so require expressly is wasted text.” Read conjunctively, it makes the weekly limit meaningless, because an employee with no short shift “will necessarily have worked at least 7 x 6+ hours = more than 42 hours.” The employees’ reading gives both limits work under either syntax. (Id. at pp. 1088–1089.)
The absurdity check reinforced the result: on Nordstrom’s reading an employee could be required to work “six straight eight-hour days, followed by a single six-hour day, followed by six eight-hour days, followed by a six-hour day, ad infinitum,” converting the statutes “from a guarantee of a complete day of rest to a guarantee of at least one day of no more than six hours of work. The exception would swallow the rule.” (Mendoza, supra, 2 Cal.5th at p. 1089.) Both agencies agreed: the IWC’s statement of basis and a 1986 DLSE opinion letter both read the exception to require that every day be six hours or less. (Id. at p. 1090.)
7. “Cause” is between compulsion and permission. On the third question the court rejected both sides: “We conclude neither definition is sufficient.” (Mendoza, supra, 2 Cal.5th at p. 1090.) It began with the 1891 first edition of Black’s Law Dictionary — “cause” is “[t]hat which produces an effect; whatever moves, impels, or leads” — and with period dictionaries defining “cause” as to “lead, induce, make, or compel (one to do something).” (Id. at p. 1091.) Nordstrom’s requirement-or-force reading is “substantially narrower than this contemporaneous understanding” and would “condone implied pressure that may nevertheless achieve an employer’s desired result.” A footnote forecloses one predictable argument: “The payment of overtime is not an impermissible employer inducement; it is, instead, simply compliance with a federal- and state-imposed legal obligation.” (Ibid., fn. 7.)
But the employees’ “suffer or permit” reading fails too, and on a textual ground with teeth. “’[C]ause’ has been understood to require some affirmative role in motivating or inducing action, not simply the passive failure to prevent action.” Employers have long been liable for wages for passively suffering or permitting work, “but the Legislature chose not to write the obligation to afford a day of rest so broadly . . . and forbade only causing an employee to forgo rest” — a choice underscored by the IWC’s use of exactly that broader “suffer or permit” language in its own orders. (Mendoza, supra, 2 Cal.5th at pp. 1091–1092 & fn. 8.) Section 552 carries criminal as well as civil consequences, and the court declined to attach them to mere permission. The rule that emerges: “An employer cannot affirmatively seek to motivate an employee’s forsaking rest, but neither need it act to prevent such forsaking.” (Id. at p. 1092.)
The court was unanimous; there was no separate opinion.
Significance
Mendoza is the controlling construction of California’s day-of-rest statutes and it distributes wins. Employers gained the workweek rule, which legitimizes stretches of up to twelve consecutive days spanning two workweeks — subject to section 554’s monthly averaging. Employees gained the six-hour exemption ruling, which closes what the court called a rule-swallowing exception and is the holding most likely to generate liability, since a single long shift in a week restores the guarantee.
The third answer is the one that changes employer behavior. The duty is affirmative and informational: apprise employees of the entitlement, then “maintain absolute neutrality as to the exercise of that right,” neither encouraging employees to forgo rest nor concealing the entitlement. (Mendoza, supra, 2 Cal.5th at p. 1091.) That is a standard an employer can fail without any coercion at all — through a scheduling culture that signals rest days are unwelcome, or through simple silence about the right. (Where a routine request to cover a shift falls on that spectrum is a question the opinion does not reach; see Open questions, below.) It is also a standard the plaintiff must prove: mere permission is not causation.
Methodologically the opinion is a useful demonstration of how the court reconciles the Labor Code with the IWC wage orders. The wage orders were not treated as background; they carried the first question, on the strength of the inference that the IWC would not have given women and minors less protection than the general workforce. (Mendoza, supra, 2 Cal.5th at p. 1082.) Practitioners arguing any ambiguous Labor Code provision should build the parallel wage-order history the same way.
Two limits deserve emphasis. First, the court expressly left open whether section 556’s weekly and daily limits are conjunctive or disjunctive (Mendoza, supra, 2 Cal.5th at p. 1088) — a live question for any employee who works 30 hours or less but has a long shift. Second, this is an answer to certified questions, not a judgment, and the court entered no disposition of its own. (Id. at p. 1092.) The Ninth Circuit applied these answers on remand. (Mendoza v. Nordstrom, Inc. (9th Cir. 2017) 865 F.3d 1261.)
Confirm the decision’s subsequent history and the current text of sections 551, 552, 554, 556 and 510 with an up-to-date citator before relying on this analysis.
Key quotes
“A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.” (Mendoza v. Nordstrom, Inc. (2017) 2 Cal.5th 1074, 1078.)
“The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek.” (Id. at p. 1078.)
“An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.” (Id. at p. 1078.)
“[A]n employer’s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right.” (Id. at p. 1091.)
“The exception would swallow the rule.” (Id. at p. 1089.)
Practice pointer
Get the employer’s established workweek in writing, first. Everything turns on it. Section 500, subdivision (b) defines the workweek as a fixed, regularly recurring seven-day period, and after Mendoza a run of consecutive days that straddles two such periods is “not per se prohibited” (p. 1078). Request the written workweek designation, payroll period definitions and any change history in initial discovery; an employer that cannot identify a fixed workweek, or that shifted it, has a problem. Then audit shift lengths, not just shift counts. The most productive theory after Mendoza is the six-hour exemption: if any single day in the workweek exceeded six hours, the exemption is gone and a day of rest was owed (p. 1090). Pull the time records and flag every workweek containing seven worked days plus at least one shift over six hours. Plead inducement with facts. Permission is not causation; the plaintiff must show the employer “induce[d] the employee to forgo rest” (p. 1078). Build the record around requests to cover shifts, scheduling practices, manager messages, incentive or bonus structures tied to availability, discipline or scheduling consequences for declining, and — critically — the absence of any notice of the right. The court made apprising employees part of the duty (p. 1091), so evidence that no one was ever told about the entitlement supports both the concealment theory and the inducement theory. Do not argue that overtime is an inducement. Footnote 7 forecloses it: paying premium pay is compliance, not enticement (p. 1091, fn. 7). Remember section 554’s monthly averaging. The weekly rule does not license twelve-day stretches indefinitely; over each calendar month the employee must receive “days of rest equivalent to one day’s rest in seven” (pp. 1086–1087). Run the monthly math, which is where a schedule that looks lawful week by week often fails. Preserve the conjunctive/disjunctive question. The court expressly did not decide whether section 556’s 30-hour and six-hour limits operate together or in the alternative (p. 1088). For an employee under 30 hours with one long shift, that unresolved question is the case. For employers, the compliance package is a documented fixed workweek, a written notice of the day-of-rest entitlement, manager training that forbids encouraging seventh-day work, and a scheduling audit keyed to the six-hour rule.
Open questions
Conjunctive or disjunctive? The court declined to decide whether section 556’s weekly and daily exceptions must both be satisfied: “the Ninth Circuit has not asked us to address” the point, and “[n]or need we do so in order to explain the meaning of the daily limit.” (Mendoza, supra, 2 Cal.5th at p. 1088.) It expressly noted that the disjunctive reading “is less protective of employee welfare.” (Id. at p. 1089.)
What conduct crosses from neutrality into inducement. The court identified the poles — an employer “cannot affirmatively seek to motivate an employee’s forsaking rest, but neither need it act to prevent such forsaking” (Mendoza, supra, 2 Cal.5th at p. 1092) — while acknowledging “a host of ways” an employer can signal that forgoing rest “will redound to their benefit, or spare them sanction” (id. at p. 1091). Where a routine request to cover a shift falls is unaddressed.
The content of the notice duty. Employers must “apprise employees of their entitlement to a day of rest” (Mendoza, supra, 2 Cal.5th at p. 1091), but the opinion does not say in what form, how often, or what proof of apprisal looks like.
Section 554’s monthly averaging in practice. The court relied on subdivision (a) to answer the twelve-day objection (Mendoza, supra, 2 Cal.5th at pp. 1086–1087), but subdivision (a) applies where “the nature of the employment reasonably requires” consecutive work. Whether the monthly averaging obligation constrains an employer that has no such justification is not resolved.
Remedy. The claims here were PAGA claims (Mendoza, supra, 2 Cal.5th at p. 1079), and the opinion addresses the substantive standards rather than what an employee recovers for a denied day of rest beyond the premium pay section 510 supplies.