Overview of California’s Day of Rest Law
The California Day of Rest Law, codified in California Labor Code section 551 et.seq., governs when employers must give their "employees" a "day of rest". The statute provides that:
Every employer of employees shall, on the seventh day thereof, cease employing and, with respect to any employee, give to his employee 24 consecutive hours of rest during each workweek. (Emphasis added).
So what does this mean?
First, the Day of Rest No. 2 applies to "every employer of employees". The statute is intended to apply to all classes of employees, and to all employers. So the employer can be a corporation, partnership, family business, leased employees, subcontractors, independent contractors, and any individual or entity that actually employs employees.
HR Solutions: Employers are strongly advised to check with competent counsel to determine whether the Day of Rest No. 2 applies to them. Don’t just assume it applies to larger employers in your industry. Employers should make sure they are in compliance with the DR Journal Week in and week out.
Second, the Day of Rest No. 2 applies to "employees".
Clearly, distinction is made between employees & independent contractors. This means that the Day of Rest No. 2 does not apply to employees classified as independent contractors. This article does not cover the enforceability of work arrangements and agreements where employees are classified as independent contractors. Suffice to, there must be no control by the person for whom services are to be rendered; the work must be outside the usual course of business of the employer or performed outside of the employer’s place of business; the worker involved must be customarily engaged in an independently established business. If all three factors exist, the employer does not have to provide a day of rest. In this situation, the workers cannot be forced to stop working. And there is no requirement that they actually take the full 24 hour period. It only means they have the right to do so. HR Solutions: Employers should consider every work arrangement carefully. If there are independent contractors working for you, you must be on top of them. That means making sure their work setting is completely separate from your employees’ work setting. There can be no overlap of workspace, equipment, or communications devices.
Finally , the Day of Rest No. 2 Order requires a California employer to give an employee "24 consecutive hours of rest during each workweek". Notice the simultaneous use of the word "each" and "week". This means that the DAY OF REST must be granted for EVERY workweek. That means, if an employee does not work 7 days in a row, the employer must still grant the rest requirement. Accordingly, if an employee works six days one week and then takes a full week off, the employer does not have to grant a day of rest during the six days he/she worked one week. Employers cannot average the workweek by spreading the days off into two weeks. They can also not stack the days off for a longer time off period. For example, if an employee agrees to work 10 days straight, the employer cannot tack on two days off on the 11th day. If that were allowed, employers could easily get around the law by contracting for 10 days on, four days off.
HR Solutions: For employers, this is one of the most discreet and difficult parts of the Day of Rest No. 2 order. It requires employers to track time and hour closely. Also, it also requires the employer to be aware of additional issues. For example, managers and exempt employees might be considered employees of the company. That means, they must be granted a day of rest. Also, telecommuting might be an area of concern. And, if an employee sleeps over for travel purposes, the employer might be liable for allowing the person to work. (even if it is voluntary).
The application of CAL. LAB. CODE § 551 and its sister statute, CAL. LAB. CODE § 552 ("Any workman employed in any occupation of labor who, in his own proper person, or in the immediate presence of his employer, or his proper representative, voluntarily elects to work more than six days in any week shall be deemed to be engaged in an employment consenting..") is not limited to the "manufacturing process" but instead, every industry. Thus, it is envisioned that in the transportation industry, the drivers must be given a day of rest. And in the hospitality industry, the chefs and waiters must be given time to rest. And in the banking, retail, IT, and every other industry, employers must give the employees a day to rest.
Employers continue to face a barrage of litigation. The new ones popping up are for failure to provide a day of rest to every employee.
Qualification for a Mandatory Day of Rest
The day of rest requirement under California law applies to all California employees, including out-of-state employees who work in California on one or more days of the week. Some employees are not entitled to a rest day, however, including employees whose regular schedule affords them one day off in seven and some employees who are covered by special collective bargaining provisions for a portion of the week. The exemptions from the rest day requirements are as follows:
(1) Any person employed in a bona fide executive, administrative, or professional capacity, or any mechanical |& engineering |and |similar| occupation, if the wage paid to the employee is at least $1,200 per month, and provided that the employee does not spend more than 20 percent of his or her work time in duties that do not qualify as exempt work.
(2) Any person whose duties are substantially all of those which meet the test of exemption set forth in the "short test" [i.e., who would be exempt from payment of overtime if the work week is less than 40 hours unless the application of the short-test would result in an employee in the same type of work earning $28.75/hour or less]. (Note: There is no dollar amount used for the short-test. Rather an employee must perform exempt work substantially all of the work week OR would be overtime exempt if the work week was less than 40 hours.)
In addition, the day of rest requirement does not apply to:
- (1) Those working in the transportation industry, intra-state so long as the applicable CBA has a rest period provision for all employees working at least 112 hours per month.
- (2) Those working in the transportation industry, inter-state, except where the governing CBA provides otherwise, a rest period clause specifically covering the employee class in question.
- (3) Any employee who works less than six hours per day and whose total weekly working time does not exceed 48 hours.
Calculation of Days of Rest
Under the law, a full rest day in this context means that the employee has "twenty-four (24) consecutive hours of rest during each workweek." Cal. Lab. Code § 551.
An employee may work up to six consecutive days in a workweek. Cal. Lab. Code § 552. In other words, if an employee works for six days, he or she must be given at least eight (8) hours of uninterrupted rest each day, or the employer must provide one additional hour of pay for each such day. Cal. Lab. Code § 512(a). The "workweek" for most employers is seven consecutive, 24-hour periods, starting from any hour of the day.
Employers are not permitted to schedule employees’ rest days within a workweek. Instead, employers must provide employees with an opportunity to take a "day of rest" on at least one of the days they work. Employers can determine their preferred sequence or pattern by averaging out the time periods for providing off-duty time periods over a period of several workweeks, but employers must avoid an "overly rigid application of a particular sequence or pattern," particularly for those employees who do not possess definite and firm commitments to work at all times. California Division of Labor Standards Enforcement, Wage Orders Orders 1-15, § 12, Interpretation of Section 12-Alternate-Day Rest Periods, page 20. Simply putting employees on a six-day schedule does not (without more) comply with Section 551, because it keeps employees from working one day during each workweek. Id.
When calculating an employee’s total number of rest days, employers are not required to count calendar days. Instead, employers are required to count "workweeks." A workweek is defined as seven consecutive days as set out above. See e.g., California Division of Labor Standards Enforcement, Wage Orders Orders 1-15, § 12, Interpretation of Section 12-Alternate-Day Rest Periods, page 20. For example, a workweek could be from Sunday to Saturday. Alternatively, a workweek could begin on any other day, such as Monday through Sunday. It does not have to follow the calendar week or even start on a specific day. Section 551 and the applicable Wage Order do not mandate a specific starting day for a workweek. As long as an employer provides an employee with the required amount of rest days in a workweek, the employer is permitted to choose when the workweek begins.
Employer Responsibilities under the Law
Employers in California have obligations under the state’s day of rest law. Employers must keep proper records of all hours worked for each non-exempt employee and obtain accurate information about the daily work schedules of each employee at least seven calendar days in advance of the first day of a regular work week. Further, the law mandates 24 consecutive hours of rest in each work week, or 36 consecutive hours of rest in every third workweek, to all non-exempt employees, and applies to both statewide and multi-state employers. Prior to an employee’s regularly scheduled day off, an employer can require that overtime hours be worked, however the employee has the right to decline the over time work.
Although the California day of rest law does not apply to licensed doctors and surgeons, it does apply to registered nurses and any employees whose duties are personal to, or in support of, the department of the customer or client. Employers are not permitted to contact an employee or require them to return to work on a regular day of rest, and any employer who violates the law is subject to a $200 fine, plus $100 for each subsequent violation during a calendar month. It is important to note, if an employee violates the rest period law, by working during their required rest period, that employee is not entitled to the remedy of recovery of lost wages.
The law does not cover employees who did not receive a day of rest for personal reasons, but only those employees who had no alternative, work-related reason for the missed rest period.
Employee Protections and Remedies
Employees may feel powerless when their employer denies them the rest days or hours of rest they are entitled to under California law. However, there are several legal and practical recourses available to employees, which include bringing a complaint to the California Labor Commissioner or seeking penalties through private litigation in court against their employer under Labor Code sections 218.6, 558 or 1199.
The California Labor Commissioner is tasked with enforcing the day of rest requirements of Section 551 and 552 and can issue civil penalties against an employer for violations of the rest day statute. Labor Commissioner penalties are generally found in Labor Code sections 98, 1190, 1193.5.
If an employee’s statutory right to a day of rest is violated, the employee may bring a Private Attorney General Act ("PAGA") claim for the rest day violations under Labor Code section 2699(f), which may provide additional monetary relief to the employee. However, PAGA penalties are only triggered under certain conditions, including that the employer was provided sufficient notice of the day of rest violation.
In California, each work permit issued to a minor requires he/she be allowed a one day rest in seven. A violation of this section activates Labor Code section 218.6, which penalizes employers: (1) $500 for the first offense; (2) $1,000 for the second offense; and (3) $2,000 for every subsequent offense involving that minor . Critically, no good-faith effort or attempt by the employer to comply with California law shall relieve the employer of the penalty. However, such factors as the minor’s age should be considered in determining the penalty.
Under Labor Code section 558, "[a]ny employer or other person acting on behalf of an employer who violates, or causes to be violated, a provision regulating minimum wages, overtime compensation, or the working of hours and days, shall be subject to a civil penalty." Specifically, with regards to the day of rest statute, every day a violation occurs is subject to a fine of $100 for each employee who was underpaid or denied a day of rest. Therefore, an employee can be entitled to $100 for every "day of rest" the employee is denied, and if there are multiple employees that are wronged, then the employer can be liable for $100 for each employee.
Finally, Labor Code section 1199, provides that "[a]ny employer who deprives an employee of wages or otherwise violates any provision of this article [**Child Labor] at a time other than that fixed, shall be liable to the aggrieved person or persons for the amount of the unpaid wages due and an additional sum as a civil penalty equal to the amount of unpaid wages, except that in no case shall the total penalty exceed two hundred fifty dollars ($250) for each violation involving an employee or two hundred fifty dollars ($250) per day for each minor involved when the violation is frequent."
Recent Developments and Cases
Our office was involved in two important litigations regarding California’s Day of Rest law. The first is Enaj v. HBG, Inc. (Loews Santa Monica Beach Hotel), LA Superior Court 17GDCV00464. Here, we are suing on behalf of a large group of hotel workers who worked over 5 hours without an uninterrupted meal period from 2007 until 2013 because Loews Santa Monica Beach Hotel (a Hyatt Company) failed to provide such meal periods. As part of the settlement, Loews Santa Monica Beach Hotel agreed to pay $1,420,730.00. The second litigation is Valenti v. Lowes HomeCenters, LLC, Los Angeles Superior Court Case No. 18 GDCV00389. In this case, we are suing on behalf of a large group of its landscapers and installers who worked for Lowe’s Home Improvements in California. These employees worked more than six days in the workweek within a month of employment and/or a calendar month without having two consecutive rest days, and were not provided proper days of rest as required by Labor Code Section 551 and 552. The matter recently preliminarily settled for $645,000. If the preliminary settlement is approved, this represents an average of $303.23 per week, or $0.12 cents per hour worked, that the impacted employees were underpaid. This wage theft lawsuit is expected to cover years of violations and tens of thousands of affected employees.
Employment Advice for Employers and Employees
Employers are advised to keep thorough and accurate time records, especially when employees work a flexible schedule or are required to work on the weekend. These records are particularly important when employees work for multiple locations within the company or when employers have unusually high turnover. In addition, employers should consistently enforce the law by not waiving an employee’s right to the day of rest in their contracts or requiring employees to waive it in any way. Employers should avoid any activity that may imply they do not support employees taking a day of rest, such as posting notices that discourage employees from requesting a day of rest, unless required by a collective bargaining agreement. It is especially important for employers to encourage employees to work together to cover shifts, rather than cover shifts for employees without sufficient notice. Employers may also want to implement and post policies that increase awareness about employees’ rights and responsibilities regarding the Day of Rest Law.
Employees should monitor and keep thorough and accurate records of their time worked, to provide evidence in the event of a dispute. In addition, employees should monitor and keep thorough and accurate records of any instances where an employer may have requested them to work more than six days consecutively and to seek resolution using Section 554 as a first step, unless otherwise satisfied with their working conditions. Employees are encouraged to continue discussing any issues with their employer and come to a resolution before turning to the Labor Commissioner. Employees should also review their collective bargaining agreement to determine if they have additional rights regarding days of rest.
Common Misconceptions about the Law
Employees often err when it comes to requesting their Day of Rest. Confusion exists in relation to the 5th and 6th days of work, as well as what qualifies as required rest, including the following:
I was scheduled to work 40 hours in the week, but ended up working 50. Since I worked over 8 hours in a day, do I get a day of rest? You do not. Section 551 states that no employee shall be employed for more than six days in any workweek. This means that every employee has the right to take at least one day of rest in a seven-day (work-week), even if they work more than eight hours a day. That seventh day cannot be any employee’s regular workday.
I was scheduled to work the first 3 out of 4 days of the week, and then I was called into work on the 4th day. Do I have the right to take a day of rest? Yes . Section 552 states that an employee may not be employed more than six days in a workweek. An employer is obligated to provide the employee with two consecutive days of rest in each seven day workweek if the employee requests them. If no request is made, the two days may be separate and not consecutive. Failure to provide day of rest will result in overtime pay for the day of work, as well as an additional penalty for missed workdays.
My employer wanted me to "volunteer" my time to come in on the seventh day of the week. Since I volunteered to work, and they did not force me to work, they did not violate the law. It is irrelevant whether or not the employee volunteered. Section 558 states that no employer or other person shall cause his or her employee to be employed more than six days, regardless if the employee "volunteered" their time.