WERDEGAR, J. —
The Ninth Circuit Court of Appeals has asked this court to resolve unsettled questions concerning the construction of the state's day
The Ninth Circuit asks:
The relevant facts are undisputed. Christopher Mendoza and Meagan Gordon are former employees of Nordstrom, Inc. (Nordstrom), a retail chain with 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.
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.)
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.
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 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.
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,
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.
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 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
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 [157 Cal.Rptr. 840, 599 P.2d 31]), 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 regarding 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 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].)
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 rate of pay of an employee." (§ 510, subd. (a).) We will return to the significance of this precise phrasing momentarily.
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 or section 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, 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.
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 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
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. (Id., subd. (a); 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 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.
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
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 [166 Cal.Rptr. 331, 613 P.2d 579]; 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 consecutive days at any one time. We interpret the Labor Code's provisions accordingly.
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.
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. (§ 556.) Nordstrom's reading of "any one" to mean "at least one," and Mendoza 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 briefed 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.
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
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 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 Mendoza and Gordon's 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
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. of 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-hour daily exception applies only if every day involves six hours or less of work.
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 p. 1027; accord, McLean v. State of California (2016) 1 Cal.5th 615, 626 [206 Cal.Rptr.3d 545, 377 P.3d 796].) 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.
We answer the certified questions as set out on page 1078, ante, and as amplified by our subsequent discussion.
Cantil-Sakauye, C. J., Chin, J., Corrigan, J., Liu, J., Cuéllar, J., and Kruger, J., concurred.