Mendoza v. Nordstrom, Inc.

Filed 5/8/17
IN THE SUPREME COURT OF CALIFORNIA
CHRISTOPHER MENDOZA, )
)
Plaintiff and Appellant, )
) S224611
v. )
) 9th Cir. Nos.
NORDSTROM, INC., ) 12-57130/12-57144
)
Defendant and Respondent; ) C.D. Cal. No.
) 8:10-CV-00109-CJC-MLG
MEAGAN GORDON, )
)
Intervener and Appellant. )
____________________________________)
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 All further unlabeled statutory citations are to the Labor Code.
2 We have reframed these inquiries slightly. (See Cal. Rules of Court, rule
8.548(f)(5).)
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
2
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
3 These periods stretched from Monday, January 26, to Thursday, February
5, 2009; from Monday, March 23, to Sunday, March 29, 2009; and from Tuesday,
March 31, to Tuesday, April 7, 2009. Nordstrom‘s established workweek runs
from Sunday to Saturday.
4 Gordon worked each day from Friday, January 14, 2011, to Friday, January
21, 2011.
5 PAGA authorizes an aggrieved employee to bring suit for specified Labor
Code violations in a representative capacity and obtain civil penalties, which are
then shared between the affected employees and the state. (§ 2699, subds. (a), (i);
Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 379–
382; Arias v. Superior Court (2009) 46 Cal.4th 969, 980–981.)
3
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),
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
4
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 parte
5
Koser (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 between denominations, typically recur on the same day each week, the
statute could be understood as extending a guarantee of a day of rest every week,
on a day of the individual‘s choosing, or, equally, a day of rest at least every
seventh day.
To illuminate the intended meaning, we thus turn to other interpretive
sources, including the regulatory and statutory contexts of which the day of rest
laws are a part.
B. Industrial Welfare Commission Wage Orders
The provisions of the Labor Code are not to be construed in isolation, but in
harmony with a second set of rules governing employment. The Legislature
established the Industrial Welfare Commission (IWC) a century ago to regulate
and protect the working conditions of women and minors. (Martinez v. Combs
(2010) 49 Cal.4th 35, 54–55.) The IWC carried out that mission by adopting a
series of wage orders, quasi-legislative enactments ―establishing minimum wages,
6
maximum work hours, and conditions of labor.‖ (Kilby v. CVS Pharmacy, Inc.
(2016) 63 Cal.4th 1, 10; accord, Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal.4th 1004, 1026.) As a result, ―wage and hour claims are today
governed by two complementary and occasionally overlapping sources of
authority: the provisions of the Labor Code, enacted by the Legislature, and a
series of 18 wage orders, adopted by the IWC.‖ (Brinker Restaurant Corp., at
p. 1026.)
Our role in interpreting the IWC wage orders and reconciling them with the
Labor Code is settled: ―The IWC‘s wage orders are to be accorded the same
dignity as statutes. They are ‗presumptively valid‘ legislative regulations of the
employment relationship [citation], regulations that must be given ‗independent
effect‘ separate and apart from any statutory enactments [citation]. To the extent a
wage order and a statute overlap, we will seek to harmonize them, as we would
with any two statutes.‖ (Brinker Restaurant Corp. v. Superior Court, supra, 53
Cal.4th at p. 1027.)
In 1919, the IWC first guaranteed a weekly day of rest for workers in the
mercantile industry: ―No person, firm or corporation shall employ, or suffer or
permit any woman or minor to work in any mercantile establishment more than
eight (8) hours in any one day, or more than forty-eight (48) hours in any one
week, or more than six (6) days in any one week.‖ (IWC wage order No. 5
Amended, subd. 8 (June 21, 1919); see IWC wage order No. 5, subd. 12 (July 31,
1920) [same]; IWC wage order No. 5A, subd. 13 (Apr. 8, 1923) [same].) In 1943,
the IWC added to this requirement a presumption that Sunday would be the
weekly day of rest absent other arrangements: ―Every woman and minor shall
have one day‘s rest in seven. Sunday shall be considered the established day of
rest for all women and minors unless a different arrangement is made by the
7
employer for the purpose of providing another day of the week as the day of rest.‖
(IWC wage order No. 7NS, subd. 3(c) (June 21, 1943).)
These early wage orders, adopted by the agency entrusted by the
Legislature to regulate wage and hour matters, at a time far closer than our own to
the enactment of the Legislature‘s day of rest law, are telling in two respects.
First, the IWC‘s orders, applicable to what was perceived by the Legislature as a
more vulnerable portion of the work population, guaranteed only a weekly day of
rest rather than at least one day of rest every seven on a rolling basis. We can
safely infer the IWC did not intend less day of rest protection for women and
children than for the general employee population, and thus that the statutory day
of rest protection was understood by the IWC to ensure a weekly day of rest, not a
―rolling seven‖ guarantee. Second, the IWC‘s 1943 mercantile industry order uses
language materially indistinguishable from the statutory guarantee, and interprets
that language as ensuring a weekly, rather than rolling, day of rest. (Compare
IWC wage order No. 7NS, subd. 3(c) (June 21, 1943) [―one day‘s rest in seven‖]
with § 551 [―one day‘s rest therefrom in seven‖].)
In time, the Legislature acknowledged various circumstances where
emergencies or the nature of the work might necessitate women working beyond
the normal daily and weekly hour limits, and provided for overtime pay. (See
Stats. 1953, ch. 1254, § 1, p. 2813.) The IWC followed suit, allowing women to
work ―in excess of six (6) days in one week‖ in circumstances where the Labor
Code permitted it, so long as they received overtime pay for all work done on the
seventh day. (IWC wage order No. 1–52, subd. 3(a)(1) (Aug. 1, 1952).)
Consistent with previous wage orders, each subsequent iteration of the mercantile
industry wage order continued to make clear that the day of rest guarantee applied
on a weekly, rather than rolling, basis. (See IWC wage order No. 7–57, subd. 3(a)
(Nov. 15, 1957) [general prohibition against working ―more than six (6) days in
8
any one week‖]; IWC wage order No. 7–63, subd. 3(a) (Aug. 30, 1963) [same];
IWC wage order No. 7–68, subd. 3(a) (Feb. 1, 1968) [same].)
In 1976, after the Legislature expanded the IWC‘s jurisdiction to include
adult men (see California Hotel & Motel Assn. v. Industrial Welfare Com. (1979)
25 Cal.3d 200, 207), the IWC revised the presumption against working more than
six days in a week (IWC wage order No. 7–76, subd. 3(A) (Oct. 18, 1976)), while
making clear through the addition of an explicit definition that regulation of days
of work was on a weekly, rather than rolling, basis. The wage order defined a
― ‗[w]orkweek‘ ‖ as ―any seven (7) consecutive days, starting with the same
calendar day each week. ‗Workweek‘ is a fixed and regularly recurring period of
168 hours, seven (7) consecutive 24-hour periods.‖ (Id., subd. 2(N).) The
corresponding days of work regulation incorporated this term, henceforth allowing
adults to work ―more than six (6) days in any one workweek‖ so long as specified
levels of overtime were paid. (Id., subd. 3(A).) Essentially the same rule is still in
effect, with overtime premiums for failing to afford a day off calculated on a
workweek-by-workweek basis. (IWC wage order No. 7–2001 (Cal. Code Regs.,
tit. 8, § 11070, subds. 2(Q), 3(A); hereafter IWC Wage Order No. 7–2001); see
IWC, Statement as to the Basis re: IWC 2001 wage orders (Jan. 1, 2001) p. 8.)
We must harmonize the foregoing history and wage orders with the
statutory guarantees. (Brinker Restaurant Corp. v. Superior Court, supra, 53
Cal.4th at p. 1027.) Interpreting sections 551 and 552 as applying on a weekly
rather than rolling basis does so. It subjects employees and employers to a single
set of consistent day of rest requirements, thereby facilitating the scheduling of
work. Reading the day of rest statutes this way, the IWC‘s wage orders provide
comparable protection but in clearer language, rather than altering or more
narrowly guaranteeing employee day of rest protection. Nor does this reading
render the wage order and Labor Code requirements redundant, as the sanctions
9
for seventh-day work under each scheme are complementary but different.
(Compare §§ 553 [misdemeanor], 558 [civil penalties] with IWC wage order
No. 7–2001, subd. 3(A) [premium pay].)
C. The Statutory Scheme
Statutory context also matters. ―We do not construe statutory language in
isolation, but rather as a thread in the fabric of the entire statutory scheme of
which it is a part.‖ (Department of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 11; see Berkeley Hillside
Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1099–1100.) Looking at
the surrounding statutory context and how the day of rest statutes fit within the
overall scheme, we will prefer an interpretation that renders the Legislature‘s
enactments a coherent whole. Here, the statutes regulating overtime and
identifying exceptions when a day of rest need not be provided are particularly
instructive.
Like the IWC in its wage orders, the Legislature has expressly defined a
― ‗week‘ ‖ and a ― ‗[w]orkweek‘ ‖ as ―any seven consecutive days, starting with
the same calendar day each week.‖ (§ 500, subd. (b).) When this chapter of the
Labor Code refers to a week or workweek, it means a ―fixed and regularly
recurring period‖ (ibid.), e.g., Sunday to Saturday, or Monday to Sunday, not a
rolling period of any seven consecutive days.
The principal overtime statute affords workers premium pay based not only
on daily and weekly hours, but also on seventh-day work. ―[T]he first eight hours
worked on the seventh day of work in any one workweek shall be compensated at
the rate of no less than one and one-half times the regular rate of pay for an
employee. . . . In addition, 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
10
rate of pay of an employee.‖ (§ 510, subd. (a).) We will return to the significance
of this precise phrasing momentarily.
As this provision contemplating work on every day of a workweek implies,
the day of rest guarantee is not absolute. (See, e.g., § 554, subd. (a) [making
allowance for emergencies and excluding certain categories of work]; id., subd. (b)
[authorizing the Division of Labor Standards Enforcement (DLSE) to make
hardship exemptions].) Two exceptions in particular shed light on the nature of
the underlying guarantee. First, the day of rest provisions shall not ―be construed
to prevent an accumulation of days of rest 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.‖ (Id., subd. (a).) Second, the day of rest guarantee does not apply
―when the total hours of employment do not exceed 30 hours in any week.‖
(§ 556.)
Gordon contends the statutory weekly overtime rules explain how
employees are to be compensated in instances when one or another exception to
the day of rest guarantee applies. We agree. In other words, employees are
generally assured a day of rest, but when circumstances dictate forgoing a day of
rest, section 510 provides, as a fallback, consideration for the hardship in the form
of premium pay. (Cf. IWC wage order No. 7–2001, subd. 3(A) [providing
premium pay for seventh-day work].)
If this is so, then section 510 reasonably should ensure premium pay for
every worked seventh day that is an exception to the day of rest guarantee. No
reason appears to think the Legislature would have wanted or intended to
discriminate between different employees deprived of a section 551/552 day of
rest. Notably, section 510 expressly affords premium pay only for ―the seventh
day of work in any one workweek.‖ (§ 510, subd. (a), italics added.) That is,
11
premium pay is available not on a rolling basis, for any seventh consecutive day of
work, but only for employees who must work every day of an employer‘s
established regularly recurring workweek. (See § 500, subd. (b).) The logical
inference is that the Legislature views only a seventh day of work during an
established workweek as an exception to sections 551 and 552, and intends the day
of rest guarantee to apply on a weekly basis. The contrary interpretation, that the
day of rest guarantee applies on a rolling basis, would mean the Legislature
intended some employees denied a day of a rest to receive premium pay, but not
others, based on the fortuity of how their work schedules fell in relation to the
employer‘s established week.6 We find such a possibility unlikely, when
compared with the alternate explanation that the Legislature simply does not
consider seven consecutive days of work spread over consecutive workweeks a
hardship the day of rest statutes were intended to protect against.
The wording of the part-time employee exception supports a similar
inference. No day of rest need be given an employee working 30 hours or less ―in
any week.‖ (§ 556; see § 500, subd. (b) [defining ― ‗week‘ ‖ as a recurring seven-
day period ―starting [on] the same calendar day‖].) If the day of rest guarantee,
like this exception, applies on a weekly basis, the exception‘s application is
straightforward. But if the rest guarantee applies on a rolling basis, then in
deciding whether a seventh consecutive day of work is permitted for a part-time
employee, one would need to choose whether to count the hours worked during
6 This is to say nothing of the administrative complexity entailed in tracking
seventh-day overtime payments, and even simply seventh-day rest guarantees,
under a rolling as opposed to a weekly interpretation. As between two possible
constructions, we may infer the Legislature in 1893 would have been more likely
to intend the interpretation that would have generated fewer compliance tracking
issues for contemporary 19th-century employers.
12
the first week overlapping the beginning of the consecutive days worked, or the
hours during the second—possibly not yet completed—week. Neither choice
represents a sensible basis for identifying and distinguishing those part-time
employees who may go without a day of rest. We need not impute to the
Legislature the intent to create such an anomaly when a simpler reading of
sections 551 and 552, as also applying on a weekly basis, is available.
Gordon finds telling the portion of section 554 that permits employees to
―work seven or more consecutive days‖ when the nature of the work requires it.
(See also IWC wage order No. 7–2001, subd. 3(H) [same].) From this, she infers
that in the absence of a work justification, seven consecutive days of work is
prohibited, and by implication the day of rest guarantee applies on a rolling basis
to any seven consecutive days.
The language Gordon cites was added to the Labor Code in 1941 and
eventually to the governing wage order in 2001. (See Stats. 1941, ch. 1264, § 1,
p. 3210; IWC wage order No. 7–2001, subd. 3(H).) It represents a relaxation of
the one day of rest in seven requirement, which previously admitted as an
exception only cases of emergency (see former § 554, enacted by Stats. 1937,
ch. 90, p. 205), but now allows for days of rest to shift based on the nature of the
work, so long as the ultimate effect is to provide one day‘s rest out of seven over
the course of a month. (§ 554, subd. (a).) The subdivision‘s requirement that ―in
each calendar month the employee receives days of rest equivalent to one day‘s
rest in seven‖ (ibid.) essentially means that rest days need not fall on every
seventh day and can be spaced out differently in a calendar month, so long as the
number of rest days received by the employee amounts to the number of calendar
days divided by seven. The practical import of section 554, subdivision (a) is to
ensure that an employer does not incur liability (other than for premium pay) if it
reasonably requires an employee to work all seven days of a workweek, so long as
13
the day of rest to which the employee would otherwise be entitled is given to the
employee on some other day of the calendar month. The language of section 554
does not convince us that sections 551 and 552 were intended to protect against
seven consecutive days of work on a rolling basis.
D. Conclusion
We conclude sections 551 and 552, fairly read in light of all the available
evidence, are most naturally read to ensure employees at least one day of rest
during each week, rather than one day in every seven on a rolling basis.
We are unpersuaded by the concern that this reading of the statutory
scheme will permit employers regularly to impose on employees schedules in
which they may rest no more than one day in 12. Section 554 provides employers
and employees some latitude, but ensures that over the course of every calendar
month an employee must receive ―days of rest equivalent to one day‘s rest in
seven.‖ (§ 554, subd. (a).) If at one time an employee works every day of a given
week, at another time shortly before or after she must be permitted multiple days
of rest in a week to compensate, and on balance must average no less than one
day‘s rest for every seven, not one for every 12.
We also reject the argument that the general employee-protective thrust of
the Labor Code compels us to adopt the interpretation favored by Mendoza and
Gordon. We agree that the remedial purposes of the wage and hour laws require
they ― ‗not [be] construed within narrow limits of the letter of the law, but rather
are to be given liberal effect to promote the general object sought to be
accomplished.‘ ‖ (Industrial Welfare Com. v. Superior Court (1980) 27 Cal.3d
690, 702; see Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at
pp. 1026–1027.) Examination of that object, however, reveals the Legislature
intended to ensure employees, as conducive to their health and well-being, a day
of rest each week, not to prevent them from ever working more than six
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consecutive days at any one time. We interpret the Labor Code‘s provisions
accordingly.
II. Section 556: How Does the Six-hour Day Exception Apply?
We consider next an exception to the day of rest rules Nordstrom seeks to
apply here. Section 556 provides: ―Sections 551 and 552 shall not 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.‖ Nordstrom argues that
under this provision, so long as an employee is given at least one day with no
more than six hours‘ work during a one-week period, he or she may be required to
work all seven days, without a day of rest. The district court agreed. Mendoza
and Gordon argue the elimination of seventh-day-rest protection applies only to
employees who work no more than six hours each and every day of the given
week. We conclude Mendoza and Gordon are correct.
The meaning of section 556 becomes evident when we apply two related
interpretive principles. First, statutory language is to be understood in context,
with the whole of a statute considered when attempting to construe each part. (In
re Tobacco II Cases (2009) 46 Cal.4th 298, 315; Bonnell v. Medical Board (2003)
31 Cal.4th 1255, 1261; Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903.)
Second, the Legislature does not engage in idle acts, and no part of its enactments
should be rendered surplusage if a construction is available that avoids doing so.
(Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1253; People v.
Arias (2008) 45 Cal.4th 169, 180; Elsner v. Uveges (2004) 34 Cal.4th 915, 931.)
Here, the Legislature has enacted two interrelated limits on day of rest
protections. One, a weekly limit, relates to employees who work 30 hours or less.
The other, a daily limit, relates to employees who work six hours or less. Both
must be given effect; that is, we must adopt a construction that gives each limit a
15
role in identifying the universe of workers who are otherwise sufficiently
protected to not need a mandatory day of rest.
We observe first that the text of the daily limit, taken alone, is ambiguous.
The exception applies to employees who ―do not‖ work in excess of ―six hours in
any one day‖ of a one-week period. Nordstrom‘s reading of ―any one‖ to mean
―at least one,‖ and Mendoza‘s and Gordon‘s reading of ―any one‖ to mean ―each
one,‖ are both grammatically permissible. Consider the statements (1) ―Overtime
shall be due an employee who works in excess of 40 hours in any one week‖ and
(2) ―No overtime shall be due an employee who does not work in excess of 40
hours in any one week.‖ ―Any one‖ means ―at least one‖ in the first phrase, but
―each‖ or ―every‖ in the second phrase.
We observe next that the double-negative syntax of section 556 also leaves
unclear whether its weekly and daily exceptions are conjunctive or disjunctive.
Can an employee whose work schedule satisfies either exception be asked to work
a seventh day, or only one whose schedule satisfies both? The provision could be
read as applying to employees who work either 30 hours or less in a week or six
hours or less in a day (the disjunctive reading), or to employees who work neither
more than 30 hours in a week nor more than six hours in a day (the conjunctive
reading).
Though the parties brief the question, the Ninth Circuit has not asked us to
address whether section 556‘s exceptions should be read disjunctively or
conjunctively. Nor need we do so in order to explain the meaning of the daily
limit. Under either the conjunctive or the disjunctive reading, Nordstrom‘s
proposed interpretation renders one of the Legislature‘s two exceptions
superfluous, while Mendoza and Gordon‘s proposed interpretation gives effect to
both. Accordingly, Mendoza and Gordon‘s reading must be the one the
Legislature intended.
16
Consider first Nordstrom‘s interpretation under a disjunctive reading of the
statute: excepted from seventh-day protection are employees who work 30 hours
or less weekly, or six hours or less on at least one day. Under this reading, the
daily limit serves no function. An employee who works no more than 30 hours in
a seven-day period averages less than 4.3 hours per day and necessarily will have
had at least one day of six hours or less; to so require expressly is wasted text.
Consider next Nordstrom‘s interpretation under a conjunctive reading of the
statute: excepted from seventh-day protection are employees who work 30 hours
or less weekly, and six hours or less on at least one day. Now, it is the weekly
limit that is rendered meaningless. Any employee who does not have even one
daily shift of six hours or less in the course of a week will necessarily have worked
at least 7 x 6+ hours = more than 42 hours; the weekly limit will never come into
play, and section 556‘s application will depend entirely on whether the daily limit
is satisfied. Neither of these readings comports with basic principles of statutory
construction.
Mendoza and Gordon‘s interpretation of the six-hour limit presents no such
difficulties. Under the conjunctive reading, only employees asked to work no
more than six hours on any one day, and no more than 30 hours total, may be
given a schedule with seven days of work. Both the daily and weekly limit serve a
role, as some schedules that involve no more than six hours a day might still
require more than 30 hours over the course of the week, while some schedules that
involve no more than 30 hours over the week might still include one or more days
in excess of six hours. So, too, for the disjunctive reading; although it is less
protective of employee welfare, eliminating seventh-day protections for a larger
pool of employees, it nevertheless involves no surplusage. Under some schedules,
an employee may be asked to work only 30 hours, even if some shifts are longer
than six hours, and so fit within section 556‘s exception. Likewise, under other
17
schedules an employee, although asked to work more than 30 hours, may have no
shifts longer than six hours and similarly fit within section 556. Whether read
conjunctively or disjunctively, both the weekly and the daily limit play a role in
defining the universe of employees within section 556‘s exception under the
Mendoza/Gordon reading, but not under Nordstrom‘s reading.
Interpreting the exception to require each day‘s work last six hours or less,
rather than only one, also avoids certain absurdities that would otherwise result. If
a single day of six hours or less were enough to eliminate seventh-day-rest
protection, an employee could be required to work, for instance, six straight eight-
hour days, followed by a single six-hour day, followed by six eight-hour days,
followed by a six-hour day, ad infinitum. Each week, the single slightly shortened
day would excuse the employer from providing an actual day of rest, and the day
of rest statutes would be converted from a guarantee of a complete day of rest to a
guarantee of at least one day of no more than six hours of work. The exception
would swallow the rule. We have no reason to think that, when adding the 30
hours per week/six hours per day exception, the Legislature intended such a
radical revision of the nature of the underlying protection, as opposed to a small
relaxation for bona fide part-time employees.
Finally, our interpretation of the exception accords with that of the two
main state agencies granted responsibility for wages, hours, and working
conditions, the IWC and the DLSE. Since 1952, and continuing to the present
day, the IWC has included the six hours daily/30 hours weekly exception in its
mercantile industry wage orders. (See, e.g., IWC wage order No. 1–52, subd.
3(a)(2) (Aug. 1, 1952); IWC wage order No. 7–80, subd. 3(F) (Jan. 1, 1980); IWC
wage order No. 7–2001, subd. 3(F).) The IWC has explained the purpose and
scope of the exception: ―The [Wage] Order also provides flexibility by allowing
40 hours to be scheduled any time within 6 days not exceeding 8 hours in a day
18
without overtime, and also 30 hours within 7 days, not exceeding 6 hours a day,
without overtime.‖ (IWC, Statement as to the Basis for IWC Wage Order No. 7–
80 (Revised), subd. 3 (July 1, 1988), italics added.) So long as employees are not
asked to work more than six hours in any one day or more than 30 hours in a
week, no overtime will be due for seventh-day work.
The DLSE interprets the ―six hours or less‖ daily exception similarly. In
1986, an employer sought the DLSE‘s advice concerning whether a proposed
work schedule would incur overtime liability. Under the schedule, an employee
would work 40 hours, with at least some work on each day of the workweek, but
with three days of six hours or less. The DLSE explained that the exception based
on working six hours or less would not exempt the company from paying overtime
for work on the seventh day of the workweek: ―In the example you provided, your
company would be liable for overtime because the total hours [worked] for the
workweek exceed 30 and there are days in which the total hours worked exceed
six.‖ (Dept. Industrial Relations, DLSE Opn. Letter No. 1986.12.01 (Dec. 1,
1986) p. 1; see Kilby v. CVS Pharmacy, Inc., supra, 63 Cal.4th at p. 13 [treating
the DLSE‘s opinion letters as a useful source of guidance]; Brinker Restaurant
Corp. v. Superior Court, supra, 53 Cal.4th at p. 1029, fn. 11 [same].) In the
DLSE‘s view, the six hours daily exception applies only if every day involves six
hours or less of work.
Consistent with the import of the complete text of section 556 and the
views of the relevant state agencies, we conclude the ―six hours or less‖ daily
exception is satisfied only if every daily shift that week has entailed six hours or
less of work.
III. Section 552: The Meaning of “Cause”
Section 552 provides that an employer may not ―cause his employees to
work more than six days in seven.‖ Mendoza and Gordon contend whenever an
19
employer allows, suffers, or permits an employee to work a seventh day, it has
caused the employee to do so. Nordstrom argues that unless the employer
requires, forces, or coerces seventh-day work, it has not caused the employee to
work. We conclude neither definition is sufficient. Rather, an employer‘s
obligation is to apprise employees of their entitlement to a day of rest and
thereafter to maintain absolute neutrality as to the exercise of that right. An
employer may not encourage its employees to forgo rest or conceal the entitlement
to rest, but is not liable simply because an employee chooses to work a seventh
day.
We begin with the text and the contemporaneous legal understanding of
what it means to ―cause‖ someone to act. Gordon and Nordstrom agree the first
edition of Black‘s Law Dictionary, published just before the ―cause‖
requirement‘s 1893 enactment, offers relevant insight. ―Cause‖ means ―[t]hat
which produces an effect; whatever moves, impels, or leads.‖ (Black‘s Law Dict.
(1st ed. 1891) p. 181, col. 2; see Anderson‘s Dict. of Law (1893) p. 155, col. 2
[―That which produces or effects a result‖].) To cause, in the context of an action
by an actor, is to motivate or induce the actor to act. (1 Standard Dict. of English
Language (1894) p. 302, col. 1 [to ―cause‖ is ―[t]o lead, induce, make, or compel
(one to do something)‖]; 2 Oxford English Dict. (2d ed. 1989) p. 1001, col. 2
[tracing to 1400 the understanding of ―cause‖ as ―[t]o actuate, move, force, drive
(an agent) to (some action or emotion)‖].)
Nordstrom‘s proposed understanding of ―cause‖ as extending only to a
requirement or the use of force is substantially narrower than this
contemporaneous understanding. It also collides with our duty, given the remedial
nature of the Legislature‘s enactments regulating employee hours and working
conditions, to ― ‗liberally construe[]‘ ‖ these provisions to promote worker
protection. (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal.4th at
20
p. 1027; accord, McLean v. State of California (2016) 1 Cal.5th 615, 626.) One
can envision a host of ways in which an employer can, short of requiring or
forcing employees to go without rest, still implicitly make clear that doing so will
redound to their benefit, or spare them sanction, and thereby motivate or induce
employees to work every day. If we confine the interpretation of ―cause‖ to
instances of express requirements or compulsions, we condone implied pressure
that may nevertheless achieve an employer‘s desired result, to the detriment of the
state‘s workforce and the long-standing policy in favor of one day‘s rest in seven.7
But that ―cause‖ should be extended to embrace every circumstance in
which an employee is allowed or permitted to go without rest does not follow.
Then, as now, ―cause‖ has been understood to require some affirmative role in
motivating or inducing action, not simply the passive failure to prevent action. It
is true that for a century employers have been liable for wages for passively
suffering or permitting work (see, e.g., IWC wage order No. 5, subd. 1 (Sept. 4,
1917)), but the Legislature chose not to write the obligation to afford a day of rest
so broadly (e.g., ―an employer shall not suffer or permit an employee to work
more than six days in seven‖), and forbade only causing an employee to forgo
rest.8 Given this choice of language, we decline to conclude that in section 552
the Legislature attached not only liability for wages, but also criminal liability, to
an employer‘s permitting an employee to work a seventh day. An employer
7 The payment of overtime is not an impermissible employer inducement; it
is, instead, simply compliance with a federal- and state-imposed legal obligation.
(See § 510; IWC wage order No. 7–2001, subd. 3; 29 U.S.C. § 207.)
8 In contrast, for example, the IWC did select this broader language in
issuing protections for women and minors: ―No person, firm or corporation shall
employ, or suffer or permit any woman or minor to work in any mercantile
establishment . . . more than six (6) days in any one week.‖ (IWC wage order
No. 5 Amended, subd. 8 (June 21, 1919), italics added.)
21
cannot affirmatively seek to motivate an employee‘s forsaking rest, but neither
need it act to prevent such forsaking.
CONCLUSION
We answer the certified questions as set out on page 2, ante, and as
amplified by our subsequent discussion.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
22
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Mendoza v. Nordstrom, Inc.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXX on request pursuant to rule 8.548, Cal. Rules of Court
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S224611
Date Filed: May 8, 2017
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Counsel:
Knapp, Petersen & Clarke, André E. Jardini and K.L. Myles for Plaintiff and Appellant.
Clark & Treglio, Clark Law Group, R. Craig Clark, James M. Treglio; The Markham Law Firm and David
R. Markham for Intervener and Appellant.
Duchrow & Piano and David J. Duchrow 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 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 for Employers Group, California
Employment Law Council and California Hospital Association as Amici Curiae on behalf of Defendant and
Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
K.L. Myles
Knapp, Petersen & Clarke
500 North Brand Boulevard, 20th Floor
Glendale, CA 91203-1904
(818) 547-5000
R. Craig Clark
Clark Law Group
205 W Date Street
San Diego, CA 92101
(619) 239-1321
Julie A. Dunne
Littler Mendelson
501 West Broadway, Suite 900
San Diego, CA 92101-3577
(619) 232-0441