Why California Employers May Soon Need to Police Employee Conduct on Off-Days

Date: November 24, 2015

One would think that an employer should be allowed to accommodate an employee’s request to work as many hours as possible—so long as the employer complies with all of wage and hour requirements, including overtime rules. But incredibly, a former employee, in California, is suing his employer and arguing otherwise. In Mendoza v. Nordstrom, the employee argues that California’s Day of Rest Statute requires employers to rigidly enforce a policy prohibiting employees from working more than seven-days in a row, which would mean that an employee is likewise prohibited from choosing to work on a day otherwise scheduled for rest.

This would not only force employers to deny reasonable requests from an employee to work an occasional seven-day workweek, but it would prohibit an employer from even asking an employee if they may like to take a shift on the seventh day of a workweek. And, even more absurdly, it would force employers to police the conduct of their exempt employees on days that they are not in the office because, they argue, an employer can be sued simply for permitting an employee to work on a day otherwise scheduled for rest. Under this view, an employer could be sued for even allowing an employee to check emails, or to answer a text, on the seventh day of a workweek.

NFIB Small Business Legal Center recently weighed-in on this case with an amicus brief raising concerns on behalf of small business employers and employees alike—all of whom want to maintain flexibility in scheduling. The brief argues that it would be a mistake for the Court to hold that employees cannot choose to waive their right to a day of rest because that would result in practical difficulties for employees and would unfairly open small businesses up to lawsuits. Additionally, the brief addressed the practical difficulties that employers would face in scheduling employees if the Day of Rest Statute was construed as requiring an off-day on a rolling seven-day basis—as opposed to on a fixed weekly schedule, as is the practice of most employers.

Finally, our brief sounds an alarm over what we call unfair regulatory surprises. Simply put, small business owners should be immune from lawsuits when they have reasonably relied on guidance from a state agency that permits the practice in question. Accordingly, we maintain that it would be especially inappropriate to accept the employee’s interpretation of the Labor Code in this case. Indeed, their rigid interpretation conflicts with longstanding guidance from California’s Department of Labor Standards Enforcement in a manner that would result in retroactive liability for thousands of small business owners who have acted in accordance with best available guidance. 

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