Christopher Mendoza v. Nordstrom

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER MENDOZA, an No. 12-57130
individual, on behalf of himself and
all other persons similarly situated, D.C. No.
Plaintiff-Appellant, 8:10-cv-00109-
CJC-MLG
MEAGAN GORDON,
Plaintiff-Intervenor,
v.
NORDSTROM, INC., a Washington
Corporation authorized to do
business in the State of California,
Defendant-Appellee.
2 MENDOZA V. NORDSTROM
CHRISTOPHER MENDOZA, an No. 12-57144
individual, on behalf of himself and
all other persons similarly situated, D.C. No.
Plaintiff, 8:10-cv-00109-
CJC-MLG
and
MEAGAN GORDON, ORDER
Plaintiff/Intervenor-Appellant, CERTIFYING
QUESTIONS TO
v. THE SUPREME
COURT OF
NORDSTROM, INC., a Washington CALIFORNIA
Corporation authorized to do
business in the State of California,
Defendant-Appellee.
Filed February 19, 2015
Before: Susan P. Graber, Ronald M. Gould,
and Consuelo M. Callahan, Circuit Judges.
Order
MENDOZA V. NORDSTROM 3
SUMMARY*
Certification to California Supreme Court
The panel certified three questions to the Supreme Court
of California:
(A) California Labor Code section 551 provides that
“[e]very person employed in any occupation of labor is
entitled to one day’s rest therefrom in seven.” Is the
required day of rest calculated by the workweek, or is it
calculated on a rolling basis for any consecutive seven-
day period?
(B) California Labor Code section 556 exempts
employers from providing such a day of rest “when the
total hours of employment do not exceed 30 hours in any
week or six hours in any one day thereof.” (Emphasis
added.) Does that exemption apply when an employee
works less than six hours in any one day of the applicable
week, or does it apply only when an employee works less
than six hours in each day of the week?
(C) California Labor Code section 552 provides that an
employer may not “cause his employees to work more
than six days in seven.” What does it mean for an
employer to “cause” an employee to work more than six
days in seven: force, coerce, pressure, schedule,
encourage, reward, permit, or something else?
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 MENDOZA V. NORDSTROM
COUNSEL
André E. Jardini (argued) and K.L. Myles, Knapp, Petersen
& Clarke, Glendale, California, for Plaintiff-Appellant.
R. Craig Clark (argued), James M. Treglio, and Laura M.
Cotter, Clark & Treglio,, San Diego, California; David Roger
Markham, The Markham Law Firm, San Diego, California,
for Plaintiff/Intervenor-Appellant.
Julie A. Dunne (argued), Dawn Fonseca, Lara K. Strauss,
Michael G. Leggieri, and Joshua D. Levine, Littler
Mendelson, P.C., San Diego, California, for Defendant-
Appellee.
ORDER
GRABER, Circuit Judge:
We respectfully ask the Supreme Court of California to
exercise its discretion to decide the three certified questions
set forth in Part II of this Order, below. See Cal. R. Ct. 8.548.
The answers to these questions of California law would be
dispositive of the appeal before us, and no clear controlling
California precedent exists. Id. Moreover, because the
questions that we certify are of extreme importance to tens of
thousands of employees in California, considerations of
comity and federalism suggest that the court of last resort in
California, rather than our court, should have the opportunity
to answer the questions in the first instance. See Kilby v. CVS
Pharmacy, Inc., 739 F.3d 1192, 1196–97 (9th Cir. 2013);
Klein v. United States, 537 F.3d 1027, 1028 (9th Cir. 2008).
MENDOZA V. NORDSTROM 5
I. Administrative Information
We provide the following information in accordance with
California Rule of Court 8.548(b)(1):
The consolidated caption for these cases is:
CHRISTOPHER MENDOZA, an individual, on behalf of
himself and all other persons similarly situated, Plaintiff-
Appellant,
MEAGAN GORDON, Plaintiff-Intervenor /Appellant,
v.
NORDSTROM, INC., a Washington Corporation
authorized to do business in the State of California,
Defendant-Appellee,
and the case numbers in our court are 12-57130 and 12-
57144.
The names and addresses of counsel are:
For Plaintiff-Appellant Mendoza: André Emilio Jardini,
K.L. Myles, Knapp, Petersen & Clarke, Glendale, California.
For Plaintiff /Intervenor-Appellant Gordon: R. Craig
Clark, Clark & Treglio, San Diego, California; David Roger
Markham, The Markham Law Firm, San Diego, California.
For Defendant-Appellee Nordstrom, Inc.: Julie A. Dunne,
Dawn Fonseca, Michael G. Leggieri, Joshua D. Levine,
Littler Mendelson, P.C., San Diego, California.
6 MENDOZA V. NORDSTROM
As required by Rule 8.548(b)(1), we designate
Christopher Mendoza and Meagan Gordon as the petitioners,
if our request for certification is granted. They are the
appellants before our court.
II. Certified Questions
We certify to the California Supreme Court the following
three questions of state law that are now before us:
(A) California Labor Code section 551 provides that
“[e]very person employed in any occupation of labor is
entitled to one day’s rest therefrom in seven.” Is the required
day of rest calculated by the workweek, or is it calculated on
a rolling basis for any consecutive seven-day period?
(B) California Labor Code section 556 exempts
employers from providing such a day of rest “when the total
hours of employment do not exceed 30 hours in any week or
six hours in any one day thereof.” (Emphasis added.) Does
that exemption apply when an employee works less than six
hours in any one day of the applicable week, or does it apply
only when an employee works less than six hours in each day
of the week?
(C) California Labor Code section 552 provides that an
employer may not “cause his employees to work more than
six days in seven.” What does it mean for an employer to
“cause” an employee to work more than six days in seven:
force, coerce, pressure, schedule, encourage, reward, permit,
or something else?
Our phrasing of the questions should not restrict the
California Supreme Court’s consideration of the issues
MENDOZA V. NORDSTROM 7
involved; that court may reformulate the questions. Cal. R.
Ct. 8.548(f)(5).
We agree to accept and to follow the decision of the
California Supreme Court. Cal. R. Ct. 8.548(b)(2). See also
Klein, 537 F.3d at 1029 (holding, with respect to a certified
question, that the Ninth Circuit is bound by the California
Supreme Court’s interpretation of California law).
III. Statement of Facts
Christopher Mendoza and Meagan Gordon are former
employees of Nordstrom, Inc., in California. Nordstrom is a
retail department store that operates in many locations
throughout the state of California, employing more than
11,000 people statewide. Mendoza worked for Nordstrom
from March 2007 to August 2009, first as a barista and later
as a sales representative in one of Nordstrom’s San Diego
locations. Gordon worked in the fitting room at one of
Nordstrom’s “Rack” locations from July 2010 to February
2011.
While employed at Nordstrom, Mendoza worked more
than six consecutive days on three occasions: (1) between
January 26 and February 5, 2009, he worked 11 consecutive
days, on two of which he worked less than six hours;
(2) between March 23 and 29, 2009, he worked seven
consecutive days, on three of which he worked less than six
hours; and (3) between March 31 and April 7, 2009, Mendoza
worked eight consecutive days, on five of which he worked
less than six hours. On each of those occasions, Mendoza
was not originally scheduled to work more than six
consecutive days, but he did so after being asked by either his
supervisor or a co-worker to fill in for another employee.
8 MENDOZA V. NORDSTROM
Gordon worked more than six consecutive days on one
occasion, from January 14 to 21, 2011. On two of those days,
Gordon worked less than six hours.
Mendoza sued Nordstrom, alleging that it had violated
California Labor Code sections 551 and 552 by failing to
provide him with one day’s rest in seven on three occasions.
He brought the action in California state court; Nordstrom
removed to federal court. Mendoza also pleaded other claims
that are not at issue in the present appeal. He filed his
complaint on behalf of a class of similarly situated hourly,
non-exempt Nordstrom employees in California, and he
brought the relevant claim pursuant to the California’s Labor
Code Private Attorneys General Act of 2004. See Cal. Lab.
Code §§ 2698–2699.5. Gordon’s complaint in intervention
alleged the same causes of action as those in Mendoza’s
complaint.
With respect to the day-of-rest claims, the district court
held a bench trial. The district court then ruled: (1) the day-
of-rest statute, California Labor Code section 551, applies on
a rolling basis to any consecutive seven-day period, rather
than by the workweek; (2) but California Labor Code section
556 exempts 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 (3) even if the
exemption did not apply, Nordstrom did not “cause”
Mendoza or Gordon to work more than seven consecutive
days, within the meaning of California Labor Code section
552, because there was no coercion; Plaintiffs waived their
rights under California Labor Code section 551 by accepting
additional shifts when they were offered. The court
dismissed the action; a timely appeal to this court followed,
MENDOZA V. NORDSTROM 9
raising the certified questions of law described in Part II,
above.
IV. Explanation of Certification
As noted, no controlling California precedent answers any
of the certified questions of statutory interpretation. We
recognize that, under California law, statutory interpretation
begins with the text. People v. Scott, 324 P.3d 827, 829 (Cal.
2014). But the text of the applicable statutes is ambiguous;
we are aware of no pertinent legislative history; and the
answer to the certified questions is not obvious, for the
reasons given below.
A. Day of Rest
California Labor Code section 551 provides that “[e]very
person employed in any occupation of labor is entitled to one
day’s rest therefrom in seven.” Section 552 safeguards that
statutory entitlement by providing that “[n]o employer of
labor shall cause his employees to work more than six days
in seven.”
Consider the following example. An employer whose
workweek (like Nordstrom’s) begins each Sunday schedules
a full-time employee to work as follows:
Sunday Monday Tuesday Wednesday Thursday Friday Saturday
OFF WORK WORK WORK WORK WORK WORK
WORK WORK WORK WORK WORK WORK OFF
If the statutes apply to any consecutive seven days, the
employer has violated them. If, on the other hand, the
10 MENDOZA V. NORDSTROM
statutes apply to each workweek, the employer has not
violated them.1
Each interpretation finds some support in the ambiguous
text and in policy considerations.
On the one hand, neither section 551 nor section 552 uses
the word “workweek” to suggest a measuring period. Yet the
term “workweek” is used in surrounding provisions of the
Labor Code—such as section 510 (requiring overtime pay),
section 511 (permitting alternative workweeks), section 513
(governing makeup work time), and section 556 (setting forth
an exemption from sections 551 and 552)—demonstrating
that the legislature could have used the workweek concept
had it intended to do so. We may not insert a term that the
California legislature chose to omit. See Cal. Civ. Proc. Code
§ 1858 (“In the construction of a statute . . . , the office of the
Judge is . . . not to insert what has been omitted, or to omit
what has been inserted . . . .”). Moreover, the purpose of the
law plainly is to avoid overworking employees by providing
a regular day of rest in most circumstances. Allowing 12
consecutive days of work every two weeks could run counter
to that purpose.
On the other hand, section 510(a), pertaining to overtime,
provides in part that “any work in excess of eight hours on
any seventh day of a workweek shall be compensated at the
rate of no less than twice the regular rate of pay of an
employee.” That wording hints both that the concept of
working a seventh day encompasses the concept of the
1
Given the facts alleged by Mendoza, the answer to this question will
determine whether Nordstrom did or did not violate these provisions on
some occasions.
MENDOZA V. NORDSTROM 11
workweek, and that the prohibition on working seven days is
not absolute. In addition, Wage Order No. 7 provides:
The provisions of Labor Code Sections
551 and 552 regarding one (1) day’s rest in
seven (7) shall not be construed to prevent an
accumulation of days of rest [in circumstances
not applicable here]; provided, however, that
in each calendar month, the employee shall
receive the equivalent of one (1) day’s rest in
seven (7).
Cal. Code Regs. tit. 8, § 11070(3)(H). The Wage Order also
states that “[a]n employee may be employed on seven (7)
workdays in one workweek when the total hours of
employment during such workweek do not exceed 30 and the
total hours of employment in any one workday thereof do not
exceed six (6).” Id. § 11070(3)(F) (emphasis added). The
Wage Order is “to be accorded the same dignity” as a statute
and is “presumptively valid.” Brinker Rest. Corp. v. Superior
Court, 273 P.3d 513, 527–28 (Cal. 2012). The phrasing of
the Wage Order suggests obliquely—but by no means
directly—that sections 551 and 552 apply to a “workweek”
and that the overarching purpose of the law can be met when
an employee receives four days off per month.
We find both interpretations plausible. We have found no
legislative history that bears on this question, which affects
nearly all California employers. Nor have we found any
California appellate case that answers it.
12 MENDOZA V. NORDSTROM
B. Exemption
California Labor Code section 556 exempts an employer
from the day-of-rest requirement “when the total hours
[worked by an employee] do not exceed 30 hours in any week
or six hours in any one day thereof.” Grammatically, the
second half of that formulation is ambiguous. Consider this
example; an employee must work for seven consecutive days
in one single workweek, as follows: 8 hours, 9 hours, 5
hours, 8 hours, 8 hours, 8 hours, and 9 hours. Has the
employer violated the statute?2
On the one hand, the more natural reading of the words is
that an employer need not provide a day of rest if an
employee works less than six hours in “any” single day of the
applicable week. The district court adopted that reading by
emphasizing the word “any,” which very often means “one.”
(“Pick any card from the deck.”)
On the other hand, “any” can mean “each” or “all”: “any
child knows the answer to that simple question.” The
purpose of the statute is to exempt an employer from
providing a day of rest only with respect to part-time
employees. For example, citing section 556, Witkin refers to
“part-time employees” as employees “whose work hours [do]
not exceed 6 hours per day or 30 hours per week.” 3 B.E.
2
The answer to this question governs a portion of the outcome here, for
two reasons. First, both Mendoza and Gordon worked less than six hours
in at least one day of the seven-day period (however defined), but neither
worked less than six hours in all seven days of the applicable period
(however defined). Second, the evidence in the record suggests that some
hourly, non-exempt employees worked more than 14 consecutive days; as
to some of them, the answer to this question may dispose of the day-of-
rest claim.
MENDOZA V. NORDSTROM 13
Witkin, Summary of California Law, Agency and
Employment § 361(2), at 456 (10th ed. 2005); see also Cal.
Dep’t of Industrial Relations, Div. of Labor Standards
Enforcement, Understanding AB 60: An In Depth Look at
the Provisions of the “Eight Hour Day Restoration and
Workplace Flexibility Act of 1999” (Dec. 23. 1999),
available at https://www.dir.ca.gov/dlse/AB60update.htm
(referring to employees whose “total hours of employment do
not exceed . . . six hours in any one day of th[e] week” as
working “a part-time schedule”).
Once again, we find both interpretations plausible, have
discovered no useful legislative history, and have unearthed
no California appellate case to guide us. And once again, the
obligations of thousands of California employers, and the
rights of tens of thousands of California workers, are at stake.
C. “Cause” to Work
Under section 552, Nordstrom may not “cause” its
employees to work more than six days in seven. That
provision dates back to 1893, when it was enacted as part of
the California Penal Code. See 1893 Cal. Stat. 54, § 301(1);
Cal. Penal Code § 301(1), at 1044 (Deering 1893). But the
legislative history sheds no light on the precise meaning of
“cause” in this context.3
In Brinker, a putative class of hourly restaurant
employees sued Brinker Restaurant Corporation, alleging that
3
The answer to this question may determine the outcome of Plaintiffs’
claims because, depending on the definition of “cause,” the employer may
or may not have “cause[d]” them to work more than the requisite number
of days.
14 MENDOZA V. NORDSTROM
Brinker had failed to provide its employees with the meal and
rest breaks required under California state law. 273 P.3d at
521. The question for decision was whether an implicit
waiver, as distinct from a mutual written waiver, was
effective to relieve the employer of liability for failure to
provide such a break. The California Supreme Court held
that an employer must relieve the employee of all duty during
the requisite break, but that the employer has no duty to
ensure that the employee does not in fact choose to continue
to work during that time. Id. at 537–38.
The district court relied on Brinker to conclude that, so
long as an employee is not compelled to work in violation of
the day-of-rest statute, the employer has not violated the
statute. We are not persuaded that Brinker provides guidance
here.
The statutory text is different. California Labor Code
section 512(a) prohibits an employer from employing
someone for more than five hours per day “without
providing” a meal period, for example. The verb to “provide”
generally means to “supply.” Webster’s Third New
International Dictionary 1827 (unabridged ed. 1961) (noting
that “PROVIDE and SUPPLY are often interchangeable”).
The employer had only to “supply” a break, not also to ensure
that each employee used what was supplied. By contrast, the
question here is what act on the part of an employer counts as
“causing” an employee to work more than the day-of-rest
statutes allow. To “cause” can mean to “induce,” see id. at
356, so is it enough for an employer to encourage or reward
an employee who agrees to work additional consecutive
days? In another context, causation is defined in terms of the
“natural and probable consequence” of one’s action. People
v. Roberts, 826 P.2d 274, 300 (Cal. 1992). Is it enough for an
MENDOZA V. NORDSTROM 15
employer to permit employees to trade shifts voluntarily,
when a natural and probable consequence may be that an
employee works more than the day-of-rest statutes allow?
Brinker does not suggest an answer. Cf. Cal. Lab. Code
§ 513 (prohibiting an employer from “encouraging or
otherwise soliciting” a request for makeup work time).
In addition to the linguistic distinctions found in the
relevant statutes, there are practical distinctions between meal
and rest breaks and days of work. An employer knows that
an employee is working on a particular day. But an employer
may or may not know, and may even have no way to know,
whether a particular employee chooses to keep working
through a lunch break or rest break.
As is the case with the other questions, the statutory text
is unclear. California employers and employees need to know
what the statute means. No legislative history or appellate
decision clarifies the issue.
D. Summary
As we read California law, we are uncertain whether the
district court correctly or incorrectly interpreted the relevant
statutes. The consequences of any interpretation of the day-
of-rest statutes will have profound legal, economic, and
practical consequences for employers and employees
throughout the state of California and will govern the
outcome of many disputes in both state and federal courts in
the Ninth Circuit. We therefore submit that these questions
are worthy of decision by the California Supreme Court.
Because the outcome of this case depends on the answers, we
also submit that this case presents a suitable vehicle for the
16 MENDOZA V. NORDSTROM
California Supreme Court to address these questions. Cal. R.
Ct. 8.548(a).
V. Accompanying Materials
The clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of the record, and an original and
ten copies of this order and request for certification, along
with a certification of service on the parties, pursuant to
California Rule of Court 8.548(c), (d).
This case is withdrawn from submission. Further
proceedings before us are stayed pending final action by the
California Supreme Court. The parties shall notify the clerk
of this court within seven days after the California Supreme
Court accepts or rejects certification, and again within seven
days if that court renders an opinion. The panel retains
jurisdiction over further proceedings.
IT IS SO ORDERED.