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Calculating the 'Day of Rest' for Workers in California

By William Vogeler, Esq. on May 12, 2017 | Last updated on March 21, 2019

When the California Supreme Court said employees are guaranteed a day of rest for each workweek, it left the math up to employers.

It requires some calculations, but on balance it means that full-time workers are entitled to no less than one day's rest for every seven. In Mendoza v. Nordstrom, Inc., the court said the law protects the day of rest for anyone who works more than six hours a day.

"If on any one day an employee works more than six hours, a day of rest must be provided during that workweek," Justice Kathryn Werdegar wrote, adding that the rule is subject to some exceptions.

The math really comes in when employers try to figure out the exceptions.

Add Exceptions

One exception applies basically to part-time workers. If an employee works less than six hours per shift, that worker is not entitled to the rest day.

However, they do get the day off if they work more than six hours on any day of the workweek. Put another way, employers cannot take away the rest day by reducing hours to less than six hours for a day or two.

A "hardship" exception, the court considered, may apply to certain industries. Where "reasonably necessary," an employer may require more than seven days straight without a day off.

However, the employee must be permitted multiple days of rest soon thereafter to compensate. On balance, the court said, there must average no less than one day's rest for every seven -- "not one for every 12."

Count Hours

In the Mendoza class action, the plaintiffs alleged a retail chain violated Labor Code sections 551 and 552 by failing to give them days off each week. The state Supreme Court rejected the retailer's claim that the day of rest could be applied on a rolling basis.

Acknowledging religious, legislative and regulatory precedents, the court said labor laws favor a rest day each workweek and not one day in seven on a rolling basis. Otherwise, the court said, overtime and part-time pay schemes would not make sense.

For example, the court said, employers would have to decide whether to count hours in a previous pay period or the subsequent period to calculate part-time employment. "Neither choice represents a sensible basis for identifying and distinguishing those part-time employees who may go without a day of rest," the court said.

AB 1066, which "arguably amended Labor Code Section 554(a)" for rolling days off, was not at issue in the case. However, the court said the section provides employers and employees "some latitude."

Of course, employees may elect not to take the day off. That would be the "ain't no rest for the wicked" exception.

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