Resurrecting the 'spirit' of the 7th day of rest

"Six days shalt thou labour, and do all thy work; But the seventh day is the Sabbath of the Lord thy God: in it thou shalt not do any work ... For in six days the Lord made the heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the Lord blessed the Sabbath day, and hollowed it." Exodus 20: 9-11 (KJV)

The California Supreme Court's recent "day of rest" ruling in Mendoza v. Nordstrom, Inc., 2017 DJDAR 4324 (May 16, 2017), determined that employers are only obligated to ensure that their nonexempt employees receive one day off in the seven-day, employer-defined workweek. With its origins reaching back in time for thousands of years, the history behind this bland wage and hour law is richer than it may seem.

In 321 A.D., the emperor Constantine called for all to rest on the "day of the sun." As pagan practices gave way to Christianity, Sunday was designated as holy: The sun's day became "the Lord's day." Fourteen hundred years later, Sunday laws sprouted in England in keeping with Christian tradition. These laws then traveled with the colonists across the Atlantic to America. The first American Blue law was enacted in 1610 in the Colony of Virginia: "Every man and woman shall repair in the morning to the divine service and sermons preached upon the Sabbath day, and in the afternoon to divine service, and catechizing."

Colonists who missed church for the first time were subject to the garnishment of a week's provisions and allowance. If the colonist skipped church a second time, a whipping was added to the garnishment. Three absences resulted in a strike-out (i.e., death). Sunday statutes evolved after the Revolution. Compelled church attendance was dropped and replaced with prohibitions that regulated using labor, conducting business, and engaging in specific "sinful" activities like fiddling and baseball.

Enforcement of Blue laws began to relax, and religious observance eventually gave way to the needs of industry as numerous exceptions for certain industries (such as agriculture and gas) carved out exceptions to the restriction of conducting business on Sunday. As the demands of the economy ramped up, American religious culture began to take on a more secular tone.

Fast-forward to California in the mid-to-late 19th century: The Legislature required business to observe Sunday laws and even included this mandate in the Penal Code. Ultimately, these laws were either overturned by the Supreme Court or repealed when they became unpopular. In 1893, the Legislature enacted an "agnostic" requirement that provided for "one day's rest in seven," thus removing a requirement that the rest be taken on any specific day of the week.

It was this 1893 Labor Code Section 551, providing "every person employed in any occupation of labor is entitled to one day's rest therefrom in seven," that was at issue in Mendoza, along with Section 552, which provides, "no employer of labor shall cause his employees to work more than six days in seven." The district court found the "plain meaning" of the statute "is to prohibit employers from causing employees to work seven consecutive days, i.e., more than six days, without a day off." Ultimately, we learn that we have been operating for roughly 125 years under a "manifestly ambiguous" statute.

Landing in the modern day and finding "no clear controlling California precedent" to guide the court's resolution in Mendoza, the 9th U.S. Circuit Court of Appeals certified to the California Supreme Court several multi-layered questions. Does the one-day of rest in seven apply on a rolling basis, or does an employer just need to show that an employee took one of the days off within the employer's defined workweek? Can a period of six consecutive days span across two workweeks?

The court's key determination in Mendoza was that the weekly, and not rolling interpretation prevailed: "the calendar is divided into seven-day blocks, and these provisions ensure at lease on day of rest in each block" such that it is permissible to have "an early day of rest in one week and a late day of rest in the next" even though that may lead to an employee working up to 12 days in a row. For guidance in interpreting the spirit of the Labor Code provisions, the California Supreme Court looked to harmonize the Industrial Welfare Commission Wage Order that evolved from 1919 to 1943 and ensured, "Every woman and minor shall have one day's rest in seven. Sunday shall the 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. And so the California Supreme Court determined that the Legislature perceived that California's "most vulnerable portion of the work population" was "guaranteed only a weekly day of rest rather than at least one day of rest ever seven on a rolling basis."

Flexibility is the takeaway from Mendoza: The strict, austere observance of a day of rest each Sunday for religious purposes has given way to a waivable day of rest with no requirement that it occur on any specific day of the week. The court's decision in Mendoza serves as a slight contraction in California's current anti-employer, pro-employee regulatory approach. A likely explanation for this phenomenon is that the unique history of Sunday laws has steered the high court's outcome. Unlike more modern laws (think pay statement requirements, laws pertaining to the structure of piece rate pay, and so forth), the day of rest requirement has been moving away from its original strictures and towards a more practical and flexible application that is responsive to the scheduling needs of both employers and employees.

California employers operating in industries facing a labor shortage can use the court's Mendoza interpretation to their benefit through strategic scheduling. Under this approach, an individual employee is able to work up to 12 days in a row, which may assist the employer in operating with a smaller labor force. During peak times, the employer can ensure that the business' staffing needs are met by strategically scheduling all employees' days off.