Mendoza v. Nordstrom, Inc.

• Decision Date: 08 May 2017
• Docket Number: S224611
• Citation: 393 P.3d 375,2 Cal.5th 1074,216 Cal.Rptr.3d 889
• Court: California Supreme Court
• Parties: Christopher MENDOZA, Plaintiff and Appellant, v. NORDSTROM, INC., Defendant and Respondent; Meagan Gordon, Intervener and Appellant.

2 Cal.5th 1074

393 P.3d 375

216 Cal.Rptr.3d 889

Christopher MENDOZA, Plaintiff and Appellant,

v.NORDSTROM, INC., Defendant and Respondent;

Meagan Gordon, Intervener and Appellant.

S224611

Supreme Court of California

Filed May 8, 2017

Knapp, Petersen & Clarke, André E. Jardini and K.L. Myles, Glendale, for Plaintiff and Appellant.

Clark & Treglio, Clark Law Group, R. Craig Clark, James M. Treglio, San Diego; The Markham Law Firm and David R. Markham, San Diego, for Intervener and Appellant.

Duchrow & Piano and David J. Duchrow, Santa Monica, 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, San Diego, for Defendant and Respondent.

Luke 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.

Julie 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, Los Angeles, for Employers Group, California Employment Law Council and California Hospital Association as Amici Curiae on behalf of Defendant and Respondent.

Werdegar, J.

The 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 (Mendoza v. Nordstrom, Inc. (9th Cir. 2015) 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).

The Ninth Circuit asks:²

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?

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?

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.)

We answer, as more fully explained below:

1. 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.

2. 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.

3. 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.

FACTUAL AND PROCEDURAL BACKGROUND

The 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.³ 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.⁴

Mendoza sued Nordstrom in state court, alleging, inter alia, that it had violated sections 551 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.)⁵ Nordstrom removed the action to federal court based on diversity jurisdiction. (See 28 U.S.C. § 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 and 552.

The 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, 95 Cal.Rptr.3d 588, 209 P.3d 923 ), plaintiffs withdrew their motion for certification. The court then held a bench trial on the merits. After trial, it concluded: (1) section 551 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.

After 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.

DISCUSSION

I. Sections 551 and 552: When Is a Day of Rest Required?

Two related provisions of the Labor Code ensure day of rest protection for employees. First, "[e]very person employed in any occupation of labor is entitled to one day's rest therefrom in seven." (§ 551.) Second, "[n]o employer of labor shall cause his employees to work more than six days in seven." (§ 552.) We consider whether this protection applies on a week-by-week basis or on a rolling basis. Under the weekly interpretation, the calendar is divided into seven-day blocks, and these provisions ensure at least one day of rest in each block, but an early day of rest in one week and a late day of rest in the next may lead to an employee working seven, eight, or more days in a row—though no more than six days out of seven, on average. Under the rolling interpretation, the provisions apply on an ongoing day-by-day basis, so that any employee who has worked the preceding six days in a row is presumptively entitled to rest on the next day.

A. Text and History

We begin with the text, but find it manifestly ambiguous. An assurance that an employee will not be required to work more than six days in seven could be interpreted as prohibiting a required seventh day of work any time an employee has worked the previous six, as Mendoza and Gordon would have it, but it could equally be interpreted as ensuring that, sometime during each week, every employee will be entitled to at least one rest day, as Nordstrom would have it. On the one hand, neither section contains the word "week," as Mendoza and Gordon stress. On the other, had the Legislature intended to protect against any seven consecutive days of work, it could have chosen more specific language that, unlike the phrase "more than six days in seven" (§ 552), does not evoke the concept of a day of rest each week (e.g., "An employer shall not cause an employee to work more than six days straight" or "in a row" or "consecutively"). The statutory language is not so plain as to conclusively embrace only one meaning.

In addition, the available history concerning the circumstances of enactment sheds limited light. Early attempts by the Legislature to regulate the days when businesses could operate mandated a weekly closure on a specific day. (Stats. 1858, ch. 171, § 1, pp. 124–125 [requiring specified establishments to close "on the Christian Sabbath, or Sunday" ]; Stats. 1861, ch. 535, § 1, p. 655 [restricting operation "on the first day of the week, commonly called Sunday"]; Pen. Code, former § 300 as codified in 1872 [prohibiting the operation "on Sunday" of most businesses].) These laws were met with religious objections and sometimes struck down (Ex parte Newman (1858) 9 Cal. 502 [declaring the 1858 law unconstitutional] ) or repealed in the face of such criticisms (see Ex parteKoser (1882) 60 Cal. 177 [upholding Pen. Code, former § 300 by a four-to-three vote]; Stats. 1883, ch. 2, § 1, p. 1 [repealing former § 300 in the wake of Koser ] ). The 1893 law departed from prior statutes by providing for a day of rest without specifying which day should be taken. (Stats. 1893, ch. 41, § 1, p. 54 [directing "one day's rest therefrom in seven"].) It thus met the objection that legislating a uniform weekly day of rest favored some religions over others and infringed on the state Constitution's free exercise guarantee. (See Cal. Const. of 1849, art. I, § 4 ; Newman , at pp. 505–507 (opn. of Terry, J.); id. at pp. 513–515 (conc. opn. of Burnett, J.); Koser , at pp. 201–206 (dis. opn. of McKinstry, J.); id. at p. 207 (dis. opn of Ross, J.); id. at pp. 207–209 (dis. opn. of Sharpstein, J.).) But inferring that the 1893 statute was drafted to remain agnostic as between the practices of different denominations and as between believers and nonbelievers does not help us resolve the present-day dispute. Given that religious days of rest, though they vary...