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Month: January 2017

2017 Rising Star Selection

For the second consecutive year, Srourian Law Firm founder Daniel Srourian has been selected as a Southern California Rising Star!

Rising Stars is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. It is an exclusive list, recognizing no more than 2.5 percent of licensed attorneys in the State of California. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger or in practice for ten years or less.

The results of the survey will appear in Southern California Super Lawyers Magazine in July 2017.

Srourian Law Firm congratulates Daniel on his selection as a Rising Star!


So much for free will.

On February 7, 2017, the California Supreme Court is set to hear oral arguments in Mendoza v. Nordstrom, Inc. [S224611. (9th Cir,. No. 12-57130; 778 F.3d 834, Central District of California; 8:10-cv-00109- CJC-MLG.)] The California Supreme Court will decide on the number of consecutive days an employee may legally work without running afoul of the state’s so-called “day of rest” statute. The issue arose when two employees of Nordstrom claimed the employer required them to work for more than six consecutive days without a day off, in violation of the law.

Per the Court’s official Calendar, the questions presented are: “(A) California Labor Code section 551 provides that ‘[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.’ Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?
(B) California Labor Code section 556 exempts employers from providing such 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.’ (Emphasis added.) 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? (C) California Labor Code section 552 provides that an employer may not ‘cause his employees to work more than six days in seven.’ 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 lower Ninth Circuit said it found the interpretations proffered by both sides plausible, discovered no useful legislative history, and unearthed no California appellate law to provide a guide, so it turned to the California Supreme Court with “the obligations of thousands of California employers, and the rights of tens of thousands of California workers … at stake.” Nicely done.

The amicus brief is a must read! You can read it by clicking here.

Detailed discussion

In 2009, Christopher Mendoza filed suit against his former employer, Nordstrom. According to Mendoza, during his tenure as a barista at a Nordstrom espresso bar and a sales representative in the cosmetics department, the national retailer violated Sections 551 and 552 of the California Labor Code, the so-called “day of rest” law.

Section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” while Section 552 states that “[n]o employer of labor shall cause his employees to work more than six days in seven.” California Labor Code Section 556 exempts an employer from the day of rest requirement “when the total hours [worked by an employee] do not exceed 30 hours in any week or six hours in any one day thereof.”

Mendoza claimed that he worked more than six consecutive days on three occasions, one time working 11 days straight (although working fewer than six hours on two of those days), seven straight days another time (with fewer than six hours on three days), and eight consecutive days (five with fewer than six hours). On each of these occasions, Mendoza was not originally scheduled to work more than six consecutive days but did so after being asked by a coworker or supervisor to fill in for another employee.

A second employee, Megan Gordon, joined the suit in April 2011. She worked as a fitting room attendant at a Nordstrom Rack store for more than six consecutive days on one occasion, although on two of those days she worked fewer than six hours.

After a two-day bench trial, a California federal court judge sided with Nordstrom.

Section 551 applies on a rolling basis to any consecutive seven-day period rather than a workweek as defined by an employer (such as Nordstrom’s Sunday-to-Saturday schedule), the court said. While that would appear to mean the defendant violated Sections 551 and 552, Labor Code Section 556 exempted Nordstrom from liability because each plaintiff worked fewer than six hours on at least one day in the consecutive seven days of work. And even if the exemption did not apply, Nordstrom did not “cause” Mendoza or Gordon to work more than seven consecutive days because they voluntarily chose to waive their rights and work extra days, the court added.

“The day of rest statutes only prohibit an employer from requiring or causing an employee to work more than six consecutive days,” U.S. District Court Judge Cormac J. Carney wrote. “An employee can waive that protection if he or she wants to, which is exactly what Mr. Mendoza and Ms. Gordon did here.”

This conclusion was consistent with the regulatory history of the “day of rest” law and was also confirmed by the California Supreme Court inBrinker Restaurant Corp. v. Superior Court, where the court found that employees could waive their right to a meal break, the court explained.

Gordon and Mendoza appealed to the Ninth Circuit Court of Appeals.

A panel of the federal appellate court considered the issue and, finding no controlling California precedent and an ambiguous statutory text, turned to the California Supreme Court for help.

The panel certified three questions to the state’s highest court:

(A) California Labor Code section 551 provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?

(B) California Labor Code section 556 exempts employers from providing such 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.” 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?

(C) California Labor Code section 552 provides that an employer may not “cause his employees to work more than six days in seven.” 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?


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