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Employer Alert: Employers Are Allowed to Have Fixed Work Weeks in Order to Avoid Overtime

May 12, 2017 | Christine H. Long
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Employers got a win in the case of Mendoza v. Nordstrom. The Supreme Court ruled that “a day of rest is guaranteed for each work week,” rather than on a 7-day rolling basis. In California, the law prohibited an employer from causing his or her employees to work more than “six days in seven” but the exception to the law stated it did not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”

Many employers dealt with the day of rest restrictions by establishing set work weeks. If an employee with set work weeks was scheduled for 7 days of work in a row, but the work days spanned two work weeks, the employee usually did not receive overtime and the employer was deemed in compliance with the statutes. In Mendoza v. Nordstrom, Inc. this pay practice was challenged, and the plaintiff alleged that the day of rest should be viewed not by work week, but rather on a rolling 7 days, meaning any time that an employee was scheduled to work 7 days in a row they were entitled to additional compensation for the missed day of rest.

Employers landed a huge victory when the court ruled: (1) periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited (there are of course exceptions); (2) the exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the week; and (3) an employer “causes” its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled.

Further, the court held employees are allowed to work more than seven days in a row if they are given time off equivalent to one day’s rest in seven days, giving employers more flexibility when it comes to scheduling. The Court’s decision demonstrates an understanding that industries like retail, hospitality and healthcare need flexibility in scheduling. All too often laws sound good on paper, but when applied to the realities of the work place but an undue burden on employers. The Court’s decision demonstrates a recognition of the challenges employers face.

If you have questions about your work place practices, please contact Christine Long, Employment Law Chair, at Berliner Cohen at or (408) 286-5800.

Berliner Cohen LLP’s experienced employment law attorneys advise and represent employers and managers on a full range of legal issues affecting the workplace, including harassment and discrimination, unfair competition and trade secrets, wrongful discharge, wage and hour issues, and labor disputes. Berliner Cohen LLP also is skilled in representing employers in both State and Federal Class Action cases.

©2017 Berliner Cohen, LLP. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship and no attorney-client relationship is created through your use of the Berliner site or your receipt of the materials.