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Issue 2 - 2017 Newsletter

In This Issue: 

-California Supreme Court Clarifies "Day of Rest" Requirements
-New Notice Requirement: Victims of Domestic Violence, Stalking and Sexual Assault
-Time for Legal Review of Rest Break Policy (and Entire Handbook)


California Supreme Court Clarifies “Day of Rest” Requirements

Can an employer require an employee to work seven days or more in a row?  Can an employee choose to work seven days or more in a row?  These questions were recently clarified by the California Supreme Court in Mendoza v. Nordstrom, Inc.

In this case, two former employees argued that Nordstrom had violated California law, which prohibits employers from “causing” employees to work more than six days in seven without a day of rest.  The two argued that they had worked six consecutive days and were therefore entitled to a day off.  Nordstrom argued that employers are only required to provide employees with one day of rest each workweek, while the employees argued that employers must provide a day of rest after employees have worked any six days in a row (whether or not they fall into the same workweek).  Nordstrom and the employees also had differing interpretations of the legal exceptions to the “day of rest” requirements.

The California Supreme Court interpreted the Labor Code’s day of rest requirements as follows:

  1. Employees are guaranteed one day of rest in each workweek.  If an employee works seven or more consecutive days across two different workweeks, it is not an automatic violation.   

  2. If an employee works six hours or less each day in a workweek and no more than 30 hours total, the employer is not required to provide a day of rest.  However, if an employee works over six hours in any day during the workweek or works more than 30 hours, he or she must be provided with a day of rest.

  3. Employers are obligated to apprise employees of their right to a day of rest and then must maintain neutrality as to their employees’ exercise of their right.  Employers may not encourage employees to skip their day of rest or conceal the fact they are entitled to a day of rest, but do not violate the law by letting employees voluntarily work a seventh day in a row.  (The Court noted that paying employees overtime in compliance with the law is not “encouragement”).

New Notice Requirement –
Victims of Domestic Violence, Stalking and Sexual Assault

Who is covered by the new notice requirement?

The new notice requirement applies to employers with 25 or more employees.

What information does a covered employer have to provide?

The new notice requirement requires covered employers to inform employees of their rights under Labor Code Sections 230 and 230.1, which provide time-off rights and reasonable accommodation rights to an employee who has been the victim of domestic violence, stalking or sexual assault.  

How are covered employers required to provide the notice under the new requirement?

Under the new notice requirement, employers must do two things: 1) Inform new employees in writing of their rights under Labor Code Sections 230 and 230.1 at the time of hire, and 2) inform current employees in writing of their rights under Labor Code Sections 230 and 230.1 upon request.

The law also required the California Labor Commissioner to develop a form that an employer may use to comply with this new requirement. That form is available here.

Time for Legal Review of Rest Break Policy (and Entire Handbook)

The California Supreme Court recently finalized its decision regarding rest breaks in California (Augustus v. ABM Security Services, Inc.).  This decision stated that California employers can exercise no control over how most employees “spend their time” during rest breaks, even suggesting that employers cannot require most employees to remain on the employer’s premises during rest breaks.

The background facts of this case involved security guards who were required to keep radios and pagers on and remain “vigilant” during rest breaks.  But, the California Supreme Court’s decision was not limited to these types of employees.  According to the Court, employers must “relinquish any control over how employees spend their break time, and relieve their employees of all duties…”  As part of relinquishing all control, employees must not be “tethered by time and policy to particular locations or communication devices…” 

Many employers have policies, procedures, and other directives that may not be in compliance with this new court decision (e.g., policies requiring employees to remain on premises during rest breaks). However, employers and employees are subject to different Wage Orders in California.  The California Supreme Court case interpreted the Wage Order language applying to the majority of workers in California.  Some employees are subject to different Wage Order rules which may allow for some restrictions during rest periods (e.g., certain construction workers and certain 24-hour care employees).

 Given this new court decision, employers should have their rest period policies legally reviewed.  Non-compliant policies can lead to class action and PAGA lawsuits seeking significant penalties, interest and attorneys’ fees.  Employers should also have their entire employment policies (e.g., Employee Handbook, Manual, etc.) legally reviewed.  Other legal developments may necessitate policy changes.

 Simpson, Garrity, Innes & Jacuzzi, P.C. has extensive experience and expertise in effectively updating employers’ handbooks and policies.

What’s New for Employers in 2018: California Legis...
Issue 1 - 2017 Newsletter

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