And On the Seventh Day, Employees Voluntarily Waived their Right to a Day Off

In addressing California’s so-called “day of rest” statutes (Cal. Lab. Code §§ 551 and 552), District Court Judge Cormac Carney has ruled that employees may waive their entitlement to a day off after six days of work, in a decision so broad as to perhaps render the purported right to a day of rest illusory. See Mendoza v. Nordstrom, No. 10-0109 (C.D. Cal. Sept. 21, 2012) (Memorandum of Decision). While Judge Carney ruled that Nordstrom could not manipulate the statutes’ plain meaning — “to prohibit employers from causing employees to work seven consecutive days” — the decision turned on an exceptionally literal understanding of what it is for an employer to “cause” an employee to work seven consecutive days. Memorandum at 8.

There was no dispute that the plaintiffs had in fact worked seven or more consecutive days, seemingly in violation of the labor code. And while the plaintiffs conceded that they had ostensibly chosen to exceed the six-day limit, they argued that this was in response to informal pressures. Plaintiff Christopher Mendoza claimed that “Nordstrom caused him to work for more than six consecutive days by exploiting his desire to earn a decent living, by making promotion within Nordstrom contingent upon additional work, and by giving him positive feedback on his performance evaluations after working beyond his scheduled hours.” Id. at 14. Mr. Mendoza noted that his willingness to forego days off was reflected in his performance reviews, earning praise. See id. at 16-17.

However, Judge Carney found the plaintiffs’ motivation to have been entirely self-directed. As to plaintiff Christopher Mendoza, the ruling concluded that he “was not forced or coerced into accepting additional shifts; he reasonably sought additional work to earn more money and maintain his benefits.” Id. at 18. Similarly, as to plaintiff Megan Gordon, who alleged that she covered for an absent employee because she believed that doing so was a tacit requirement, Judge Carney fully credited Nordstrom’s evidence that the store had no formal policy “requiring employees to cover ‘no show’ shifts.” Id. at 19.

Carney also noted that no evidence was presented that demonstrated overt coercion by Nordstrom. Of course, if employees believe that foregoing their statutorily mandated days off is a de facto rule for remaining in the good graces of their employer and advancing within the company, there will rarely be a need for coercive actions on the employer’s part.