Legal Newsline

Thursday, November 21, 2019

Ninth Circuit gives employers more flexibility to fight 'day-of-rest' claims

By Dee Thompson | Nov 1, 2017


SAN FRANCISCO (Legal Newsline) -- A federal appeals court based in San Francisco recently bucked California's pro-plaintiff trend by dismissing a class action lawsuit against Nordstrom, a Sacramento attorney says.

In August, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court ruling dismissing “day of rest” claims brought by two former Nordstrom employees.

“This decision is interesting because it contradicts California trends of anti-employer, pro-employee regulations and rulings," Katherine Sandberg, an attorney with Fisher and Phillips' Sacramento office, told Legal Newsline

"Flexibility ultimately is the takeaway. Slowly we’ve chipped away at observing a day of rest on each Sunday to saying there’s no requirement that it occur on any specific day of the week.”

The two hourly employees of Nordstrom, Christopher Mendoza and Meaghan Gordon, sued Nordstrom in state court in 2014, alleging they were not given the “day of rest” required under state law, which says one day in seven must be a day of rest.

Previously, in the wake of a bench trial, the case was dismissed with a ruling that found the day-of-rest provision didn't apply because the employees worked shifts of less than six hours, and they weren't forced to work those shifts. 

Mendoza and Gordon then appealed. 

The district court had also determined that Mendoza and Gordon were not “aggrieved” under the PAGA (California’s Private Attorneys General Act), and the appellate court affirmed that decision and did not allow them to substitute someone who was, in a legal sense, aggrieved.

PAGA authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the State of California for Labor Code violations.

Under PAGA, there are fewer guidelines to meet than in a class action case, and the civil penalties are different than in a class action, according to Sandberg. Not allowing plaintiffs to be swapped to satisfy the “aggrieved” requirement is positive because it allows the court to decline the substitution, she said.

“So they are not going to be able to get people to substitute in and try to essentially go on a fishing expedition for qualified plaintiffs,” Sandberg said. “PAGA creates significant problems for California employers, unfortunately.” 

According to the Aug. 3 appeals court opinion, “The panel held that the stipulated facts demonstrated that neither plaintiff worked more than six consecutive days in any one Nordstrom workweek, and each of their individual claims under California Labor Code sections 551 and 552 failed.” 

"Back in the mid- to late 19th century California, like a lot of other states, was required to observe Sunday laws, as set forth in the penal code," Sandberg said. 

"Eventually those laws were overturned or repealed. Ultimately, the legislature enacts this provision that says OK, one day’s rest in seven. It removed the requirement that the day be taken on a Sunday.”

The ruling is a plus for employers, she said.

“It’s definitely a positive ruling for employers because they are able to take a more flexible approach to scheduling," Sandberg said. 

"I have a lot of clients who are facing labor shortages right now -- the construction industry, restaurants and so forth can’t find enough qualified workers. When you’re operating with a smaller workforce, it’s good to be able to have that flexibility in scheduling.” 

Sandberg added, “With this ruling, employers are able to have an employee work as many as 12 days in a row, and that’s totally fine under the court’s interpretation of the labor code.”

The opinion was issued by Judge Susan P. Graber, and the other two judges on the panel were Ronald M. Gould and Consuelo M. Callahan. 

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U.S. Court of Appeals for the Ninth Circuit