We understand that employees must be provided a day of rest unless the employee wants to work a seventh day. We would like to offer a bonus or special higher wage to employees to make it more attractive for them to work on their rest day. Can we do this?
In California, a day of rest is guaranteed for each workweek. Generally, an employer cannot require, encourage, or induce employees to forgo their statutorily required day of rest.
A bonus or higher wage would likely be considered incentive pay and treated as an inducement that violates the requirement that a day of rest be provided.
Day of Rest Rules
Labor Code Section 551 provides that “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.” Labor Code Section 552 states that “No employer of labor shall cause his employees to work more than six days in seven.” (Emphasis added).
Labor Code Section 556 provides an exception to sections 551 and 552 “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”
Additionally, the day of rest requirement does not apply when the employer can show that emergencies or the nature of the employment reasonably require that the employee work seven or more consecutive days so long as, in each calendar month, the employee receives days of rest equivalent to one day’s rest in seven. (Labor Code Section 554).
A workweek is defined in Labor Code Section 500(b) as “any seven consecutive days, starting with the same calendar day each week” that “is a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods.” Importantly, the employer defines the workweek. If the employer fails to define the workweek, a workweek definition of Sunday through Saturday will be applied by default.
When an employee chooses to work on the seventh day in a defined workweek, Labor Code Section 510(a) requires time and one-half the regular pay rate for the first eight hours worked and double the regular pay rate for all hours worked beyond eight.
The key issue here is what actions taken by the employer “cause” an employee to work more than six days in seven.
Causing Employee to Work More than Six Days
The California Supreme Court has held that an employer causes an employee to work the seventh day in violation of Section 552 if it motivates or induces the employee to work. (Mendoza v. Nordstrom, Inc., 2 Cal.5th 1074 (2017)).
The court emphasized that an employer is not liable if it simply permits an employee to work more than six days in seven. An employer must notify employees of their right to a day of rest and “maintain absolute neutrality” regarding the exercise of the right. “An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.” (2 Cal.5th at 1091).
Best Practices for Seventh Day of Work
To ensure compliance with day of rest requirements, the employer should:
- Clearly define the workweek in the employee handbook.
- Track all employee hours to avoid inadvertently scheduling an employee for a seventh day of work.
- Have employees complete the Day of Rest – Acknowledgement and Waiver form (available to CalChamber members on HRCalifornia) when they choose to work the seventh day.
- Pay the correct overtime and double time if the employee works the seventh day.
- Train managers and supervisors that they cannot pressure or induce employees to work on the seventh day.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
