Cir. Nos. 1');">1');">1');">12-571');">1');">1');">130/1');">1');">1');">12-571');">1');">1');">144, C.D. Cal. No.
Petersen & Clarke, André E. Jardini and K.L. Myles
for Plaintiff and Appellant.
& 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.
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.
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.
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).
Ninth Circuit asks:
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
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?
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.)
answer, as more fully explained below:
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.
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
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.
and Procedural Background
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. 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.
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.) 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.
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.
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.
Sections 551');">1');">1');">1 and 552: When Is a ...