Bracing for a Decision that May Force Changes in Employment Practices in California

Date: March 21, 2017

It would be an understatement to say that California is not a very business friendly state. That’s plain as day when you talk to small business owners. Whereas, small business owners in other parts of the country are concerned primarily with regulatory mandates that have come out of Washington D.C. in the past few decades, small business owners in California are much more worried about radical ideas floating in the California Legislature. And, unfortunately, legislators in Sacramento have proven to be tremendously aggressive in advancing Big Labor’s agenda, and especially callous toward small business concerns. Nonetheless, hair-brained lawyers inevitably seem to find ways to push the envelope even further in lawsuits.

This is why California has—once again, earned an undignified position on America’s list of judicial hellholes. And a case currently pending in the California Supreme Court is a prime example. In Mendoza v. Nordstrom, former employees sued because their employer allowed them to work more seven days straight, but with rest days in each consecutive week. They allege that in so doing, Nordstrom’s had violated state law guaranteeing employees a right to a day of rest—one in seven days.
But their theory would make illegal long-standing employment practices, which the Legislature has never before called into question. To be sure, California employers have been required to allow a day of rest (one day in seven) for over a century. And this has always been understood as requiring a day off once each workweek. For that matter, the Department of Industrial Relations has twice issued guidance on overtime requirements, which have confirmed the long-running understanding that an employer complies with day of rest requirements by allowing a single day each workweek. For example, a business operating on a Monday-Sunday workweek could comply by allowing an employee a day of rest for any given day within that week. In other words, an employee could lawfully work more than six consecutive days, so long as the employee was allowed a single day off each calendar week.

Under DIR’s guidance, an employee might lawfully be scheduled as follows: Week 1 – Monday Off, Work Tuesday-Sunday; Week 2 – Work Monday-Saturday, Sunday Off. But the plaintiff in Mondoza argue that this previously sanctioned arrangement is illegal because it permits the employee to work twelve days straight. And if embraced, their theory would mean that conceivably any employer in California could be sued for allowing employees to work seven consecutive days across separate workweeks. For example, a mom-and-pop coffee shop might be sued for allowing an employee to work Wednesday-Sunday in week 1 and Monday-Tuesday in week 2—even though, in this hypothetical, the employee may have multiple days off each workweek.

NFIB Small Business Legal Center filed a brief urging the Supreme Court to reject this radical new interpretation for several reasons. First, as a practical matter, it would create scheduling nightmares for employers. Second, it would make it harder for employers to accommodate reasonable requests from employees for leave or to switch shifts. And finally we argued that it would inappropriate to accept an interpretation that not only undercut longstanding employment practices, but which also contravenes best available guidance from the State, on which employers have relied for decades.

Perhaps the most outrageous aspect of plaintiffs’ theory is that they have argued that employers cannot even give employees the option of working on the seventh day if they might like. Our view is that an employee may have good reasons to want to take extra shifts, or to arrange their work schedules around their personal lives. For example, an employee might be saving for a wedding, a trip to Europe, to pay college tuition or to have a little extra on hand before taking time off for exams. Or perhaps the employee may want to do a little work on the weekends because it allows her flexibility to attend to other personal matters throughout the week. We give the example of a high school teacher who is in the classroom Monday-Friday, and who would like the flexibility to continue doing her lesson plans or grading exams (at least occasionally) over the weekend. But the plaintiffs’ wildly paternalist theory would require her to execute a written waiver with her employer every time she might want to do anything—even respond to a single email—on a Sunday.

For more insights on this case, check our Luke Wake’s commentary in a podcast recently recorded by the Daily Journal—a California legal publication. Wake is a Senior Staff Attorney for the Small Business Legal Center.

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