Category Archives: Weekly Updates

Weekly Employment Law Updates

Ninth Circuit Clarifies “Day of Rest” Rule in Dismissing PAGA Claim

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In Mendoza v. Nordstrom, Inc., 9th Cir. No. 12-57130 (8/03/2017), the Ninth Circuit affirmed a judgment against Nordstrom, Inc. for violation of California’s “day of rest” law. Plaintiff Christopher Mendoza had argued that Nordstrom violated Labor Code section 551, which grants employees a right to one “day’s rest” in seven and section 552, which provides that no employer “shall cause his employees to work more than six days in seven,” and thus was subject to penalties. Mendoza had claimed that he had worked more than six days three times during his employment, including times where he worked 11, 7, and 8 days. The district court had held that the seven-day period was “rolling” and based on any consecutive 7-day period, rather than based on a workweek, but that here this did not apply because Nordstrom employed Mendoza for six hours or less “on at least one day” of a week, triggering an exemption under section 556, and that there was no coercion (Mendoza willingly performed the work).

On appeal, the Ninth Circuit held that the District Court was incorrect on two counts.
First, sections 551 and 552 should be based on a workweek basis, such that each 7-day workweek (usually Monday through Sunday or Sunday through Saturday) operated as its own 7-day period. Employees are only entitled to one day of rest in each workweek. Second, the Court held that the exemption under section 556 only applied if the employee did not work more than 6 hours in any day of a workweek,, not just one day of a workweek.

However, the district court’s errors did not change the ultimate result because Mendoza (and other plaintiffs) were not “aggrieved employees” under the Private Attorneys General Act, because in each instance in which they worked 7 or more days in a row, those days were split over two workweeks, and in each one of those workweeks there was at least one day of rest. Therefore, a dismissal of the PAGA claim was appropriate.

Cal. Supremes Affirm Discovery Rights to PAGA Plaintiffs

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In Williams v. Superior Court, Cal. Ct. App. Case No. S227228 (7/13/2017), the California Supreme Court held that a plaintiff in a claim under the Private Attorneys General Act (PAGA) may conduct discovery regarding the identities of other aggrieved employees to the same extent as in a class action. Further, a trial court cannot require a plaintiff to make a prima facie case as a condition of compelling the defendant to disclose employee contact information.

Briefly, Michael Williams worked for a Marshalls department store, and claimed that Marshalls failed to provide compliant meal and rest periods under California law, including because company policy resulted in stores being understaffed and managers had the authority to revise employee time records to eliminate meal break violatoins. statements.

After the case was filed, Williams sought the personal contact information of all California hourly employees during the statutory period. The trial court conditioned the disclosure of contact information on Plaintiff making a “threshold showing” of merit after having his deposition taken. The Court of Appeal rejected Williams’ writ petition. The California Supreme Court granted review.

At the outset, the Court noted that “Williams was presumptively entitled to an answer to his interrogatory seeking the identity and contact information of his fellow Marshalls employees.”
In reviewing Marshall’s objection that the request was overbroad, the Court explained that because the objection did not involve privilege, the question of discoverability depended on whether the request was “reasonably calculated to lead to the discovery of admissible evidence,” i.e., within the scope of discovery.

Second, the Court found that the interrogatory was not unduly burdensome, and even if there is some burden, the trial court should consider alternatives less than completely barring discovery to address that burden. But the Court found that simply providing contact information is not unduly burdensome, although seeking detailed payroll and timekeeping documentation may give rise to such an objection.

Finally, the Court held that there was no sufficient privacy interest in the identities of the aggrieved employees to preclude production and that it was too high of a threshold to require a “compelling need” to produce such information.

Security Guards Considered on Duty if Required to Carry Radio During Rest Break

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“We next consider the second question raised by the parties: can an employer satisfy its obligation to relieve employees from duties and employer control during rest periods when the employer nonetheless requires its employees to remain on call? The answer, we conclude, is no — and an analysis of the regulatory framework, as well as the practical realities of rest periods, shows why. Neither Wage Order 4 nor section 226.7 provides a straightforward answer to whether on-call rest periods are permissible. Neither mentions on-call time at all, let alone on-call rest periods. (But see Wage Order 4, subd. 5(D) [providing that reporting-time pay requirements ―shall not apply to an employee on paid standby status who is called to perform assigned work‖].) Nonetheless, one cannot square the practice of compelling employees to remain at the ready, tethered by time and policy to particular locations or communications devices, with the requirement to relieve employees of all work duties and employer control during 10-minute rest periods.”

“ABM recognizes that the employer has a break-related obligation to its employees. But it suggests that we define that obligation by distinguishing between, on the one hand, requiring a guard to work and, on the other hand, requiring a guard to remain on duty or on call. It would also have courts determine whether an on-call obligation unreasonably interferes with an employee‘s opportunity to take an uninterrupted rest period. This proposed course would result in less clarity and considerably greater administrative complexities. And it makes for an awkward fit with section 226.7‘s text, which forbids employers from requiring employees to work during any meal or rest period, and Wage Order 4, which requires employers to provide rest periods and explicitly indicates that employees must generally be relieved of all duty during meal periods (Wage Order 4, subd. 11(A)). Several options nonetheless remain available to employers who find it especially burdensome to relieve their employees of all duties during rest periods –– including the duty to remain on call. Employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in Wage Order 4, subdivision 12(B) and section 226.7.”

Augustus v. ABM Security Services (Cal. Sup. Ct. Dec. 22, 2016) 2016 S.O.S. 6553. Click here for full opinion.