©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 259 7.22 Restrictions on Scheduling and Work Quotas 7.22.1 One day of rest every seven days California generally entitles employees to a day of rest every seven days, except where the hours of work do not exceed 30 hours in one week or six hours in one day.510 This statutory requirement was in place, without litigious contention, since 1937. But then the PAGA statute, in 2004, created opportunities for plaintiffs’ counsel to seek civil penalties for a wide variety of Labor Code violations. Thus it was that former Nordstrom employees, invoking PAGA, sued the department store company for having employers work on a seventh day, without the employees’ written consent. This paternalistic theory of employer liability would hurt employees who, for their own reasons—wanting more money, satisfying personal scheduling preferences—want to work on the seventh day. When a federal district court dismissed their claim, the plaintiffs appealed to the Ninth Circuit. The Ninth Circuit wrestled with the following questions concerning how to interpret the relevant Labor Code provisions: First, what are the seven days: the employer’s regular workweek, or any group of consecutive seven days? Second, does the exemption from the day-in-rest requirement apply when an employee works fewer than six hours in any one day of the seven days, or does the exemption apply only when an employee works fewer than six hours in each day during the seven days? Third, when the statute prohibits an employer to “cause” employees to miss a day of rest, does “cause” mean force, coerce, pressure, schedule, encourage, reward, permit, or something else? In 2017, the California Supreme Court, on a referral from the Ninth Circuit, answered the three questions, in Mendoza v. Nordstrom, Inc. First, as to the question of “which seven days?,” Mendoza determined that employees are entitled to at least one day of rest during each workweek, and not during a rolling period of any seven consecutive days.511 Second, as to the exemption for employees working shifts of six or fewer hours, Mendoza held that the exemption applies only to those employees who never exceed six hours of work on any day of the workweek or more than 30 hours in a week.512 Third, as to what it means for an employer to “cause” an employee to work a seventh day, Mendoza held that an employer may not induce an employee to forgo a protected day of rest, but the employer may permit or allow the employee to do so.513 7.22.2 Retail scheduling. Retail employers throughout America generally have the discretion to schedule their workforces in accordance with their own business needs, without regard for employee preferences. In California it’s different, or at least it’s different in San Francisco. In 2014 the San Francisco Board of Supervisors enacted two first-of-a-kind ordinances, commonly referred to as the “Retail Workers’ Bill of Rights.” These ordinances impose obligations on “Formula Retail Establishments”514 with 20 or more employees in San Francisco. Before a new employee’s first day of employment, Formula Retail employers must provide a good-faith written estimate of the employee’s expected minimum number of scheduled shifts per month, and the days and hours of those shifts. But this estimate is not a contractually binding promise.515 Formula Retail employers also must provide employees with their schedules two weeks in advance, including any on-call shifts, and must provide advance notice of any changes to the employees’ biweekly schedule (not including employee-requested sick leave, time off, shift trades, or additional shifts).516 If changes are made to the employee’s schedule with less than seven days’ notice but more than 24 hours’ notice, then the Formula Retail employer must pay one hour of pay, at the employee’s regular hourly pay, for each shift change. If changes are made with less than 24 hours’ notice, then the Formula Retail employer must pay two or four hours of “predictability pay,” depending on the duration of the shift.517
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