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Mendoza v. Nordstrom Inc.

Supreme Court of California

May 8, 2017

CHRISTOPHER MENDOZA, Plaintiff and Appellant,
v.
NORDSTROM, INC., Defendant and Respondent; MEAGAN GORDON, Intervener and Appellant.

         9th Cir. Nos. 1');">1');">1');">12-571');">1');">1');">130/1');">1');">1');">12-571');">1');">1');">144, C.D. Cal. No. 8:1');">1');">1');">10-CV-001');">1');">1');">109-CJC-MLG

          Knapp, Petersen & Clarke, André E. Jardini and K.L. Myles for Plaintiff and Appellant.

          Clark & Treglio, Clark Law Group, R. Craig Clark, James M. Treglio; The Markham Law Firm and David R. Markham for Intervener and Appellant.

          Duchrow & Piano and David J. Duchrow for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant and Intervener and Appellant.

          Littler Mendelson, Julie A. Dunne, Joshua D. Levine and Dawn Fonseca for Defendant and Respondent.

          Luke A. Wake for National Federation of Independent Business Small Business Legal Center, CATO Institute, Reason Foundation, Manuel Cosme, Jr., Paul Cramer, Kieth Street, Stacy Antonpoulos, Nathan Foli, Steve Duvernay and Tibor Machan as Amici Curiae on behalf of Defendant and Respondent.

          Julie Stahr and Lance C. Cidre for National Retail Federation as Amicus Curiae on behalf of Defendant and Respondent.

          Ogletree, Deakins, Nash, Smoak & Stewart and Robert R. Roginson for Employers Group, California Employment Law Council and California Hospital Association as Amici Curiae on behalf of Defendant and Respondent.

          Werdegar, J.

         The Ninth Circuit Court of Appeals has asked this court to resolve unsettled questions concerning the construction of the state's day of rest statutes, Labor Code sections 550-558.1');">1');">1');">1.[1');">1');">1');">1" name="ftn.FN1');">1');">1');">1" id= "ftn.FN1');">1');">1');">1">1');">1');">1');">1] (Mendoza v. Nordstrom, Inc. (9th Cir. 201');">1');">1');">15) 778 F.3d 834; see Cal. Rules of Court, rule 8.548.) These statutes prohibit an employer from “caus[ing] his employees to work more than six days in seven” (§ 552), but do not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof” (§ 556).

         The Ninth Circuit asks:[2]

         1');">1');">1');">1. Is the day of rest required by sections 551');">1');">1');">1 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? (See Mendoza v. Nordstrom, Inc., supra, 778 F.3d at p. 837.)

         We answer, as more fully explained below:

         1');">1');">1');">1. 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.

         2. 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.

         3. 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.

         Factual and Procedural Background

         The relevant facts are undisputed. Christopher Mendoza and Meagan Gordon are former employees of Nordstrom, Inc. (Nordstrom), a retail chain with locations throughout California. Mendoza worked as a barista and later a sales representative for Nordstrom in San Francisco and San Diego; Gordon worked as a sales associate in Los Angeles. On several occasions, Mendoza was asked by a supervisor or coworker to fill in for another employee, with the result that he worked more than six consecutive days.[3] During each of these periods, some but not all of Mendoza's shifts lasted six hours or less. Similarly, on at least one occasion Gordon worked more than six consecutive days, with some but not all of her shifts lasting six hours or less.[4]

         Mendoza sued Nordstrom in state court, alleging, inter alia, that it had violated sections 551');">1');">1');">1 and 552 by failing to provide him statutorily guaranteed days of rest. The suit was filed as a putative class action on behalf of nonexempt California Nordstrom's employees, and the day of rest claim was brought pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA). (See §§ 2698-2699.5.)[5] Nordstrom removed the action to federal court based on diversity jurisdiction. (See 28 U.S.C. § 1');">1');">1');">1332(d).) After removal, the parties stipulated to Gordon's filing a complaint in intervention. Gordon's complaint likewise was a putative class action and also included a PAGA claim for violation of sections 551');">1');">1');">1 and 552.

         The district court granted summary judgment on claims other than the day of rest claims. Because PAGA authorizes a representative action without the need for class certification (Arias v. Superior Court, supra, 46 Cal.4th at p. 975), plaintiffs withdrew their motion for certification. The court then held a bench trial on the merits. After trial, it concluded: (1');">1');">1');">1) section 551');">1');">1');">1 guarantees a day of rest on a rolling basis, for any seven consecutive days; but (2) under section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period, as Mendoza and Gordon did; and (3) 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 court dismissed the action.

         After plaintiffs timely appealed, the Ninth Circuit filed an order requesting that we resolve unsettled questions of California law relating to the operation of the state's day of rest statutes. (Mendoza v. Nordstrom, Inc., supra, 778 F.3d 834.) We granted the request.

         Discussion

         I. Sections 551');">1');">1');">1 and 552: When Is a ...


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