Employment Law Daily ‘Day of rest’ claim fails for Nordstrom employees who didn’t work more than six consecutive days in workweek
Monday, August 7, 2017

‘Day of rest’ claim fails for Nordstrom employees who didn’t work more than six consecutive days in workweek

By Kathleen Kapusta, J.D.

Because neither plaintiff—former employees of Nordstrom in California—showed they worked more than six consecutive days in any one Nordstrom workweek, their individual claims under a California Labor Code provision granting employees a right to one “day’s rest” in seven failed, the Ninth Circuit concluded, affirming the dismissal of their California Labor Code Private Attorneys General Act (PAGA) claim. The court also rejected their assertion that it had to remand the case to permit a new PAGA representative who did suffer violations of the relevant Labor Code provisions to “step forward” and continue litigating, explaining that even “if an additional party could have satisfied PAGA’s aggrievement and procedural requirements, Plaintiffs have cited no authority—and we have located none—explaining why the district court was obligated to permit the addition or substitution of PAGA representatives” (Mendoza v. Nordstrom, Inc., August 3, 2017, Graber, S.).

California Labor Code Section 551 grants employees a right to one “day’s rest” in seven and Section 552 safeguards that entitled by providing that “[n]o employer of labor shall cause his employees to work more than six days in seven.” These provisions, however, do not apply “when the nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.” Nor do they 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.”

PAGA claim. The plaintiff alleged that Nordstrom violated Sections 551 and 552 by failing to provide him with one day’s rest in seven on three occasions and the plaintiff-intervenor alleged that she worked more than six consecutive days on one occasion without a day of rest. The plaintiff filed his complaint on behalf of a class of similarly situated hourly, nonexempt Nordstrom employees in California and he brought his claim pursuant to PAGA.

Lower court proceedings. After a bench trial, the district court ruled that Section 551 applies on a rolling basis to any consecutive seven-day period, rather than by the workweek; Section 556 exempted Nordstrom from that requirement, because each plaintiff worked less than six hours on at least one day in the consecutive seven days of work; and even if the exemption did not apply, Nordstrom did not “cause” either plaintiff to work more than seven consecutive days, within the meaning of Section 552 because there was no coercion. Further, the court found that the plaintiffs waived their rights under Section 551 by accepting additional shifts when they were offered.

State high court answers certified questions. After the district court dismissed the action, the Ninth Circuit, in a prior decision, found that no clear controlling California precedent existed with respect to the district court’s holdings and certified three questions to the California Supreme Court. Answering the first question—whether the day of rest is calculated by the workweek or whether it applies on a rolling basis—the state high court responded: “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.” In response to the second question, the court explained that “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.”

The third question asked “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?” In response, the court answered: “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.”

Right conclusion, wrong reasons. Based on the California Supreme Court’s responses to the certified questions, the Ninth Circuit found the district court answered the first two questions incorrectly. But because the stipulated facts showed that neither plaintiff worked more than six consecutive days in any one Nordstrom workweek, each of their individual claims under Sections 551 and 552 failed, said the appeals court, finding that the lower court reached the right conclusion but for the wrong reasons.

No new PAGA representative. And while the plaintiffs insisted that the appeals court remand the case to permit a new PAGA representative to “step forward” and continue litigating this dispute, the court pointed out that while PAGA permits a civil action by an aggrieved employee, an “aggrieved” status is not the only requirement to bringing a PAGA claim as there are also procedural requirements that must be met.

Thus, even if there were other aggrieved employees, they would have to exhaust their claims administratively before bringing their own PAGA action. And while the plaintiffs argued that district courts may permit substitution of class representatives in ordinary class action cases, this comparison was unavailing for at least two reasons. Not only is a PAGA suit fundamentally different than a class action, a district court’s discretion to permit substitutions or additions of parties is not a requirement that it do so, said the appeals court, pointing out that the district court here was under no such obligation.

Observing that the parties had ample opportunity to shape their theories of this case, the court found that “nothing in the district court’s order or this court’s opinion prevents a proper plaintiff from bringing a new action to vindicate his or her rights in the future. In the circumstances, the district court did not err by dismissing the case.”

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