California Labor Codes Addressing Work Weeks of 7 Consecutive Days
There are two California labor codes that are applicable to an employee working seven (7) consecutive days: Labor Code section 551 and Labor Code section 552. These sections provide exceptions to the general rules set forth above that employers cannot mandate their employees work seven (7) consecutive days without a 24-hour, consecutive, non-working period for the employee.
C. Labor Code section 551
Labor Code section 551 states that no employer of labor or other employed persons shall cause his employees to work more than six (6) days in any one week. However, this section is inapplicable to the following "special lists": those persons in executive, administrative, or professional positions described in, and who meet the conditions imposed by , Wage Order No. 4 of the Industrial Welfare Commission; those employees described in Education Code section 45128 or 45129; motion picture employees or employees covered by Wage Order No. 12 of the Industrial Welfare Commission.
D. Labor Code section 552
Labor Code section 552 states "[e]very person employed in any occupation of labor as to whom section [551] does not apply, and who has no sufficient means of securing his or her own support, may be required to work seven (7) days in any one week." However, Labor Code section 552 is inapplicable to the following "special lists": those persons in executive, administrative, or professional positions described in, and who meet the conditions imposed by, Wage Order No. 4 of the Industrial Welfare Commission; those employees described in Education Code section 45128 or 45129; motion picture employees or employees covered by Wage Order No. 12 of the Industrial Welfare Commission.
Have You Worked 7 Days in a Row? Your Rights as an Employee
Employees of all California employers have the right to a day of rest for every six consecutive days worked. This right is protected by California law and cannot be waived by the employer without consequences.
With rare exception, California law mandates that every employer grant their non-exempt employees at least one day of rest for each consecutive seven-day period. This means that, even if the employee has agreed to work, the employer must still relieve them of their duties for a full 24 hour period within seven days from when the employee began their work. Employers may, however, limit the number of consecutive days worked by employees in the following ways:
When employees have voluntarily accepted a shift or work schedule that exceeds the seven days’ allowance, no employer liability exists because the violation of the law was caused by the employee’s voluntary relinquishment of his or her required rest day. The employee cannot later turn around and allege inaction or neglect in making a demand for rest that actually resulted from a voluntary waiver. Consider the following: An employee who requests to continue working on the seventh day normally would not be violating the law because it is not expressly stated that it is illegal to work more than six days in a row. But when the employer allows said employee to work on the seventh day despite knowing that it would result in a denial of his or her right to a rest period, the employer is liable for violating the law as a party to the agreement – even if the employee requested the work. As such, it is necessary for the employer to keep track of its employees’ consecutive days worked. Employers who do not maintain an accurate record of the number of days worked in a 7-day stretch run the risk of getting penalized by the Division of Labor Standards Enforcement (DLSE) for violating California’s requirement to provide rest days.
Clarifying the Exception: When Can You Require Employees to Work 7 Days in a Row?
Generally, the exception to the 7-day work week rule is in the plumbing and electrical industry as defined by Labor Code Section 1813. This section provides specifically that "work performed in, or incidental to, the construction, alteration, or repair of the installations of electrical wiring where conduits, raceways, or boxes are to be used shall not be subject to the provisions of Sections 551 and 552 of this code." Though there is no specific case law interpreting this, at least one California Division of Labor Standards Enforcement opinion letter has concluded that a plumbing company is also exempt from the 7-day rule as set forth in Section 551. In the plumbing example, the work was to repair broken toilets in residence. The plumbing had to be completed in one day because the resident could not afford to have any plumbing done over a period of days. Under an Industry exemption, the plumber was required to work in 7 consecutive days.
Additionally, health-care employees may also legally work 7 consecutive days under an exception in Labor Code Section 556 which states: "[n]o employer of labor shall cause his employees, except 10 people or less, to work more than six days in any one week unless: (1) The employee voluntarily works for seven days within the workweek; (2) The nature of the employment reasonably requires the employee to remain on duty seven and one-half hours in any one 24-hour period, in which case in addition to the seventh day each employee shall receive overtime compensation for all hours worked over 40 hours during the workweek; (3) The employee, together with another employee or employees, is engaged in an operation which necessitates that the employees be organized in rotation of shifts so as to keep the operation going; (4) There is a prospective sale of a perishable or seasonal crop, and one or more of the employees is employed to gather or harvest the crop; or (5) The employee is a traveling salesperson." Thus health care professionals, like plumbers, working in the state may only work 7 consecutive days where the trigger event which necessitates someone to work 7 consecutive days is present.
The Consequences for Working Against California Rest Day Regulations
Violating California’s rest day requirements can lead to significant legal penalties for employers. Affected employees can bring civil lawsuits both for unpaid wages and also for emotional distress. These lawsuits are often class actions, seeking restitution for all employees who have worked for the company and were subject to uniform policy of violating rest days. Typical recovery in successful misclassification class actions is $25,000-$200,000 per month.
California Labor Code Section 3551 includes provisions for fines against companies. If an employer violates California Labor Code Section 551 by working its employees for seven (7) consecutive days , the fine can be one-hundred dollars ($100) for each underpaid employee for each work week the violation occurred. If the employer willfully violates Section 551, even a higher fine will be assessed.
Violating California Labor Code Section 552 carries its own set of penalties and fines. The penalty for violating Section 552 of California’s labor code is a similar $100 for each underpaid employee for each workday the violation continued. If the employer willfully violates this section, even a higher fine will be assessed.
What to Do if You Have Been Denied a Required Rest Day: A Guide for Employees
Given this background, if an employee feels they have been denied their right to a rest day in violation of California labor laws, the following steps should be taken:
- Typically what happens is that an employee will be confronted with a discipline a few days after the violation was first noted. Sometimes it is intentional on the part of the employer, and other times it is just an honest mistake, but the discipline will be an effort to scare the employee into not pursuing the issue or to convince the employee to just have a day off at a later time. As discussed above, this is illegal and cannot be done. This is usually the first indication to the employee that they are not being rightfully observed.
- The next step is to carefully note the circumstances of the instance in which the rights were violated. This will include obtaining the names and contact information of any witnesses.
- At this point, the employee should consider a few more factors. Counsel for the employer may mislead the employee, telling them that the issue is a small matter and will ultimately be resolved in time. The problem here is that the employer has no intention of fixing the issue and you, as an employee, run a great risk of continuing to work for that employer. Heightened exposure to hazards, injuries and illnesses can occur if the employer isn’t changing its practice. Also, under California law, a civil action for unpaid wages can be filed within 4 years of the incidents that are at issue.
- The employee should make the complaint to the Labor Commissioner’s office within 18 months in the case of hourly wage and overtime matters, and within 4 years for any typical complaint. This is a fairly long period of time to preserve the right to make a claim. Ultimately, if the employer violates the law, the worker bringing the claim will receive the benefit of greater latitude in filing their complaints.
- Submit the claim to the Labor Commissioner. In this claim, it is critical to articulate all of the ways in which the employer did not observe the laws and the rights of the worker. Also, it is important to keep track of your claim once it has been submitted. Always keep copies and updated records in the event the case runs longer than a year from the time of the claim.
Best Practices for Compliance with California Rest Day Laws for Employers
This blog post is from a legal update provided by Reed Smith’s Labor and Employment Group.
The consequences for failing to plan with regard to scheduling beyond compliance with statutory labor obligations could be immense. To manage the risks with as much exposure as possible, employers could implement a number of employment practices as they relate to compulsory consecutive working days.
Scheduling Best Practices
As part of an open dialogue with employees, employers should communicate what their scheduling rules are and the importance of scheduling given their demographics and e.g., product or service lines. Then, employers should make schedules available to employees as soon as practicable. The more advance notice, the less likely there will be employee objections, which sometimes motivate management to overlook scheduling rules. Laying out the consequences of scheduling violations at the time of the initial scheduling or at the time of any change in the schedule, apprising employees of the fact that there may be miscalculations and alerting employees of the process for redress (e.g., go to supervisor), may also deter scheduling conflicts. Lastly, reminders in advance of the work week or proposed changes to the work week at least a week in advance (FLSA requires employers to give non-exempt employees one work week but California law is silent) may help prevent miscalculations. Equally impactful may be a reminder to managers and supervisors of the statutory requirements, their inability to relax those requirements, and the types of consequences they could face for doing so.
Record Keeping Best Practices
To document compliance with the statutory standard , employers should keep the following records: (1) an updated code of conduct or employee handbook regarding absences or attendance policies with acknowledgment of receipt by the employee; (2) a daily log of hours worked which can be integrated with timekeeping; (3) on-call policies in the employee handbook or otherwise; and (4) a computerized system or manual roster to authorize each and every change in the schedule, perhaps through an electronic verification (e.g., access codes or scannable cards), to reduce the risk of managers changing the schedule without the knowledge of the human resources department.
Employee Communication Best Practices
Employers could benefit from training employees at the time of hire not only on attendance issues but also on reporting requirements. An example of a reporting requirement could be to clarify what constitutes "late," how many absences are "too many," etc. Furthermore, at the time of hiring or onboarding, the employer should train employees on who to report scheduling issues to and the remedial action available through the reporting structure. Employers can reinforce this training through training on disciplinary measures should employees fail to comply with management’s scheduling protocols.
Conclusion
Given the California Supreme Court’s decision and continued enforcement of plaintiff and labor group driven legislation, enforcement actions and class actions seeking penalties, and a less than favorable public opinion of employers, a comprehensive system for managing scheduling could help avoid these expensive claims.