By Jacob Peeples
Nordstrom, Inc. has been at the center of controversy surrounding its dropping of the Ivanka Trump clothing and accessory collection.[1] However, the ongoing case of Mendoza v. Nordstrom, Inc.[2] may have a bigger impact on its business. The case is largely based on determining the number of consecutive days an employee may work without violating California’s state labor code.[3] The code states that “[n]o employer of labor shall cause his employees to work more than six days in seven.”[4] Two employees filed a complaint against Nordstrom, Inc. because they maintained that they were required to work at least seven consecutive days without a day off and claimed that this violated Section 552 of California’s labor code, but Nordstrom maintains that Code’s language is not so restrictive.[5]
On February 19, 2015, the Ninth Circuit Court of Appeals separated the issues into three sections.[6] First, the court asked whether the required “day of rest” referenced in California’s law should be calculated on a rolling basis for any consecutive seven-day period or by the workweek.[7] Second, the court questioned whether working less than six hours in a day exempts businesses from this rule.[8] Third, the court discussed “what it means for an employer to ‘cause’ a worker to work more than six days in seven—force, coerce, pressure, schedule, encourage, reward, permit, or something else?”[9]
In order to understand the first issue, consider a workweek that runs from Sunday to Saturday. If the California Supreme Court were to agree with Nordstrom’s interpretation of the law, any California employer could schedule an employee to work twelve days in a row if they did not work on Sunday in the first week and did not work on Saturday of the second week. The employees bringing the case believe that this is the exact thing that the code is meant to prevent,[10] but Nordstrom argues that it provides employers and employees more flexibility with their schedules and is ultimately a good thing for businesses and workers.[11]
The legislative history on this section of the code is thin, but regardless of how the California Supreme Court’s interprets it, the plaintiffs argue that there is still room for potential employee abuse. Nordstrom’s attorney asserts that because employees can waive their rights to meal or rest breaks per the courts decision in Brinker Restaurant Corp. v. Superior Court,[12] the Court should extend this waiver to allow workers to waive their rights to a day off.[13] Conversely, Knapp Petersen & Clarke, representing one of the plaintiffs, expressed worry that allowing employees to decide whether to give up a rest day would lead employers to “cause” their employees to give up their rest day.[14] For example, if the California Supreme Court found that an employee had the ability to opt not to take a day off, it could lead employers to pressure all of their employees to continue working or face termination.[15]
If the court sides with the defendant, all California businesses and employees will have more flexibility when creating schedules. Employees would be able to choose to work seven days in a row, and this may allow employers to avoid hiring more employees in order to fill empty shifts. If the court sides with plaintiff, there may be more of a financial burden, but California employees would have a more bright-line standard of when their employers were violating the labor code.
Nordstrom’s interpretation could lead to a lot of case-by-case litigation on whether incentives or potential punishments for opting out of a rest day qualified as “cause.” The California Supreme Court must now make a decision balancing the burden that a strict definition of “cause” may have on businesses in California against protecting employees from coercive business practices that could lead to extensive fact-based litigation. Employment lawyers should keep a close eye on the decision and the potential waves of litigation it may open up in California.
[1] See Richard Pérez-Peña & Rachel Abrams, Trump Assails Nordstrom for ‘Unfairly’ Dropping His Daughter Ivanka’s Line, N.Y. Times (Feb. 8, 2017), https://www.nytimes.com/2017/02/08/business/ivanka-trump-nordstrom-tj-maxx.html (detailing the responses to Nordstrom’s decision and potential issues that these responses raise).
[2] Mendoza v. Nordstrom, Inc., No. S224611, 2015 Cal. LEXIS 2399, at *1 (Apr. 29, 2015).
[3] See id.
[4] Cal. Lab. Code § 552.
[5] See Cara Bayles, Calif. High Court Mulls Nordstrom’s Rest Day Policy, Law 360 (February 7, 2017), https://www.law360.com/employment/articles/889623/calif-high-court-mulls-nordstrom-s-rest-day-policy.
[6] Mendoza v. Nordstrom, Inc., 778 F.3d 834, 838 (9th Cir. 2015).
[7] See Cal. Lab. Code § 551 (“Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”).
[8] Mendoza, 778 F.3d at 837.
[9] Id.
[10] See Bayles, supra note 5 (arguing that “the text, the purpose and the spirit of the statute” was clearly meant to prevent employees from working seven consecutive days).
[11] See id. (reasoning “that workers liked their flexible schedule and that holding employers to a strict reading of the law, which carries criminal penalties, would ‘chill an employer’s ability to work with employees.’”).
[12] 53 Cal. 4th 1004, 1055 (2012).
[13] See Bayles, supra note 5.
[14] See id. (reasoning that the “opportunity for mischief would be huge” if employees had this much control over their employees schedules).
[15] See id. (looking at a concern raised by Justice Goodwin H. Liu in the 9th District case).
