(Illustration) Shakespeare TypingBy Candace Bertoldi

“The rest is silence.” So spake Hamlet, as he expired on stage. Lawyers love wordplay. Webster defined it as the “playful or clever use of words.” Google defines wordplay as “the witty exploitation of the meanings and ambiguities of words, especially in puns.” Shakespeare was the king of wordplay; his exuberant punning, much like Hamlet’s famous last words, has kept literary critics debating for centuries over their meaning.

Lawyers especially enjoy the wordplay game of statutory interpretation, which many regard as the highest form of intellectual fodder. No one can deny that wage and hour litigation often arises out of the exploration (or exploitation) of seemingly innocuous words in California’s Labor Code. Perhaps the most litigated word in recent years was “provide”—until the California Supreme Court issued, in Brinker v. Superior Court, the final word on an employer’s duty to “provide” meal periods.

Currently in the hot seat are lesser-known words, contained in the Labor Code’s “day of rest” provisions:

  • Section 551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”
  • Section 556 exempts employers from the duty to provide a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”
  • Section 552 prohibits employers from “causing their employees to work more than six days in seven.”

Adding further to the confusion, the IWC Wage Orders acknowledge that an employee will sometimes work more than six consecutive days. They state that Sections 551 and 552 shall not be construed to prevent an accumulation of days of rest when “the nature of the employment reasonably requires the employee to work seven (7) or more consecutive days; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7).”

Employers have grappled with what it means to “cause” an employee to work six days in seven, what it means to provide “one day’s rest in seven,” and when the day of rest requirement is excused. Wage and hour litigation has exploited the ambiguity in these statutes. But the California Supreme Court now has an opportunity to provide some clarity.

The high court, on April 30, 2015, accepted a request by the Ninth Circuit of the U.S. Court of Appeals. The Ninth Circuit requested an authoritative interpretation of California law, to help it resolve a pending appeal. In granting that request, in Mendoza v. Nordstrom, Inc., the high court has agreed to address three questions concerning the interpretation of the day-of-rest provisions.

  • Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven day period?
  • Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?
  • What does it mean for an employer to “cause” an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else?

The Ninth Circuit, in asking for the high court’s help, observed that no controlling California precedent answers these questions, that the text of the applicable statutes is ambiguous, and that legislative history does not seem to answer these questions. Meanwhile, the Ninth Circuit noted, “the consequences of any interpretation of the day-of-rest statutes will have profound legal, economic, and practical consequences for employers and employees throughout the state of California and will govern the outcome of many disputes in both state and federal courts in the Ninth Circuit.”

We agree, and will be tracking developments in this area. Meanwhile, we expect plaintiff’s lawyers to avail themselves of wordplay in these statutory ambiguities and answer the question of “to sue or not to sue” with continued “day of rest” litigation until the California Supreme Court finally puts the debate to rest.

Edited by Jonathan Brophy