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California Supreme Court on California’s Day of Rest Law
The California Supreme Court issued a long-awaited ruling on California’s “Day of Rest” statutes, contained in the Labor Code at sections 551-558. The Court’s ruling is important for employers with workforces that do not work traditional Monday-Friday schedules. Justice Werdegar, who is retiring this summer, wrote the opinion for a unanimous court.
The case arose in the retail context. Mendoza worked at Nordstrom. He filled in for other employees, resulting in more than six consecutive days worked (even spanning over 2 work weeks). Not all his shifts lasted less than six hours. So, he and some other employees sued Nordstrom, the employer, for violating California’s one day’s rest in seven law. The case landed in federal court and before the 9th Circuit Court of Appeals. The court asked the California Supreme Court for clarity on the statutes.
Here are the Ninth Circuit’s questions and the Court’s answers:
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?
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.
As the Court explained:
Interpreting sections 551 and 552 as applying on a weekly rather than rolling basis does so. It subjects employees and employers to a single set of consistent day of rest requirements, thereby facilitating the scheduling of work. Reading the day of rest statutes this way, the IWC‘s wage orders provide comparable protection but in clearer language, rather than altering or more narrowly guaranteeing employee day of rest protection.
So, if an employee works Tuesday, Wed., Thurs., Fri. Sat. and Sun in week one, that employee does not have to have that following Monday off. Rather, the seven day rule is measured on a workweek basis. That will make compliance with this part of the Labor Code much easier.
The Court next considered
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?
The Court answered this question:
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.
This question related to Labor Code section 556, which says:
Sections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.
This statute means that the prohibition on working seven days in a workweek does not apply to employees who are part-time as defined in section 556. But the Supreme Court had to decide whether the term “six hours in any one day” meant that only people who work fewer than six hours per shift, every shift, are not entitled to one day’s rest in seven. Or, did the law mean that an employee who works less than 30 hours per week AND who works at least one shift of fewer than six hours does not have to have a day off?
The Court’s answer was that only employees who work fewer than six hours a day AND fewer than 30 hours in a workweek are not entitled to one day’s rest in seven.
only employees asked to work no more than six hours on any one day, and no more than 30 hours total, may be given a schedule with seven days of work. Both the daily and weekly limit serve a role, as some schedules that involve no more than six hours a day might still require more than 30 hours over the course of the week, while some schedules that involve no more than 30 hours over the week might still include one or more days in excess of six hours.
Third, the Court considered what happens when an employee decides to work seven days in a row by switching or asks to work seven days in a row to earn extra money. Here is the Ninth Circuit’s question:
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.)
And here is the California Supreme Court’s answer:
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.
The Court explained
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.
So, this means that employers should include in their policies, such as regarding work schedules, switching, timekeeping, etc., that the employee is entitled to one day’s rest in seven, and that the employer does not encourage employees who take on extra shifts to work a seven-day workweek. The employer should also say that it will not retaliate against employees who do not wish to work on the seventh day, and that any employee who feels required to do so should report the matter to human resources or another member of management.
Employers also should review their scheduling policies to ensure that part-time workers are provided with one day off per workweek if they work more than six hours on any one day in that week.
This case is Mendoza v. Nordstrom, Inc. and the opinion is here.
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Court of Appeal: Employers Not Required to Allow Employees to Revoke Resignation
When an employee resigns, the employer is not obligated to allow the employee to change her mind without evidence that the employer “coerced” the resignation or somehow tricked the employee or engaged in misconduct. That’s an important ruling for employers, who sometimes face employees with “quitter’s remorse.” ™
Featherstone worked for a Kaiser operation. She had a medical condition that required her to have a brief leave for surgery. But she otherwise was not known to have any disability, particularly not any disability that would impair her mental state or cause her to make rash decisions. After returning from the short leave with no restrictions, Featherstone resigned her position. Several days later, she attempted to withdraw the resignation, claiming that medication had impaired her thinking. Kaiser refused to rescind the resignation. Featherstone sued for disability discrimination and failure to provide reasonable accommodation under the Fair Employment and Housing Act. The Court of Appeal upheld the trial court’s grant of summary judgment.
Featherstone principally argued that she had a disability and that Kaiser was required to allow her to rescind her resignation as a form of reasonable accommodation. The Court of Appeal rejected that claim for two important reasons. First, the Court held that an employer’s refusal to rescind a resignation is not an “adverse employment action” which is a necessary element of the claim:
refusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action.
Reviewing and quoting from federal case law, the Court continued:
unless “the employer forces the [employee’s] resignation by coercion or duress” or “obtains the resignation by deceiving or misrepresenting a material fact,” an employee’s resignation is “presumed to be voluntary,” and, therefore, the employer’s “failure to accept [the employee’s] rescission of her voluntary resignation [is] not an adverse employment action.”
The Court also explained that a resignation is an employee’s termination of a contractual relationship. Under normal contract rules, the employee can revoke the resignation before it’s accepted, but not once the employer accepts it:
“An at-will employment may be ended by either party ‘at any time without cause,’ for any or no reason, and subject to no procedure except the statutory requirement of notice.” (Guz, supra, 24 Cal.4th at p. 335; Lab. Code, § 2922.) Because the “ ‘the employment relationship is fundamentally contractual’ ” (Guz, supra, 24 Cal.4th at p. 336), California courts have similarly held that “[r]esignations are contractual in nature.” (Mahoney v. Board of Trustees (1985) 168 Cal.App.3d 789,799.) “As such, a resignation is an offer which may be withdrawn prior to its acceptance.” (Ibid., italics added; Civ. Code, § 1586; T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 278.) In other words, “[u]b California law, an employee has a right to rescind a resignation unilaterally (like any contract offer) only prior to its acceptance.” (Ulrich v. City and County of San Francisco (9th Cir. 2002) 308 F.3d 968, 975.)
Given the absence of an “adverse employment action,” Featherstone’s disability discrimination claim failed. The Court also rejected a “failure to accommodate” claim. First, the Court decided that Kaiser couldn’t be liable for failing to accommodate Featherstone’s desire to rescind her resignation because Kaiser had no knowledge Featherstone suffered from a disability that caused her to resign:
Here, when Featherstone resigned SCPMG did not know—actually or constructively—that Featherstone was suffering from a temporary disability caused by an adverse drug reaction. It is undisputed that prior to her resignation neither Featherstone’s direct manager, Sheppard, nor Sheppard’s supervisor/manager knew that Featherstone was suffering from an altered mental state. Nor could Featherstone’s managers have reasonably suspected that she might be suffering from an altered mental state. Featherstone returned to work from her sinus-related medical leave without any restrictions. Moreover, none of the work status reports that Featherstone submitted to SCPMG during her medical leave disclosed any information about her medical condition or prescribed medications.
The odd facts surrounding the plaintiff’s medical condition aside, this case is important for employers faced with an employee who resigns. An employer who accepts the resignation is under no obligation to rake the employee back because the employee ended the employment contract. However, that general principle could be inapplicable if the employee is not “at will,” or if the employer has a policy that permits employees to change their mind. Similarly, employers should be consistent when handling attempts to rescind resignations.
This case is Featherstone v. Southern Cal. Permanente Medical Group and the opinion is here.
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CA Supreme Court Unanimously Holds: No Jury Trial under H&S Code section 1278.5
I can’t blog about this in detail, because, well, it’s our case. #HumbleBrag Quickly though – the California Supreme Court just held, 7-0, that there is no jury trial available under Health and Safety Code section 1278.5. Naturally, we’re pleased about this result. However, the Court also held that a plaintiff can have a jury trial by pleading a claim for wrongful termination in violation of public policy. So the Court taketh away and the Court giveth.
On the surface, this seems like a non-event. But it is highly significant for hospital employers, because section 1278.5 applies to non-employees who can’t sue for wrongful termination. The statute also is broader than a wrongful termination claim with respect to the potential defendants. Wrongful termination claims don’t provide for attorney’s fees, and carry with them a 2-year limitations period rather than 3. So, the case is significant even for employment law practitioners.
Separately, we lost 7-0 on a procedural issue that will be important for the appellate bar. The Court held that the denial of jury trial is reviewable by writ, and overruled some old decisions that had held that a post-judgment appeal is the proper vehicle for review. We had argued that a writ was precluded by the Court’s earlier decisions.
Anyway, I’ll let you read the analysis of others, given the case is still active Here is the opinion in Shaw v. Superior Court.
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