Category Employment

Employer Reminder! February 14, 2024 Deadline to Provide Employees Notice Noncompete Agreements are Void

By: Jizell Lopez

For several years noncompete agreements have been largely unenforceable in California, subject to narrowly tailored exceptions. However, this has not dissuaded employers from including noncompete agreements in employment contracts nor has it dissuaded employers from drafting broad policies that function as noncompete agreements. Thus, in October of 2023, Governor Newsom signed Senate Bill 699 (“SB 699”) and Assembly Bill 1076 (“AB 1076”) to enhance and clarify California’s prohibition against noncompete agreements which took effect on January 1, 2024.

SB 699 now prohibits employers from enforcing employee noncompete agreements that do not fit within one of the exceptions under Business and Profession Code section 16600—this includes the sale of a business, the dissolution of partnership, or upon a termination of interest in a limited liability company. SB 699 clarifies that noncompete agreements that do not fit within a statutory exception are void, regardless of where the agreement was signed or where the employee worked when the agreement was signed. Further, SB 699 bans employers from entering into a contract with an employee or prospective employee that includes a prohibited noncompete provision.

More importantly, AB 1076 requires employers to provide a written and individualized notice advising employees that their prohibited signed noncompete provision is void. Employers must provide this written and individualized communication by February 14, 2024, to any current or former employees who were employed after January 1, 2022. Violation of the notification requirement could result in a penalty of $2,500 per violation, plus additional sanctions. Should you be uncertain of these new requirements, please consult with an experienced employment attorney.

Relief Veterinarians: Employee or Independent Contractor?

By Jizell Lopez

The worker classification of relief veterinarians has been a hot button issue for many years. Traditionally, relief veterinarians and veterinary practices have preferred the classic independent contractor arrangement. However, given recent changes in worker classification laws and the legal risks associated with misclassification, it is a good time for both relief veterinarians and veterinary practices to revisit their independent contractor agreements to determine whether currently classified independent contractors are, in fact, properly classified.    

As a brief background, on April 30, 2018, the California Supreme Court issued its opinion in Dynamex Operations West, Inc. v. Superior Court (“Dynamex”), adopting new standards for determining whether a California worker should be classified as an employee or an independent contractor for the purposes of wage orders adopted by California’s Industrial Welfare Commission. On January 1, 2020, California Governor Gavin Newsom signed AB 5, expanding the application of Dynamex and making it more difficult for California workers to qualify as independent contractors. While this new standard has upended many traditional independent contractor industries, the California legislature acknowledged that some industries should be exempt from the AB 5 standard and, instead, the traditional analytical standard (known as the “Borello” test) should apply. Thus, AB 5 may have codified the Dynamex ruling, but it also carved out several exceptions, including for veterinarians.

AB 5 requires the application of the “ABC Test” to determine if workers are employees or independent contractors for purposes of the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission’s wage orders. Under the ABC Test, a worker is considered an employee and not an independent contractor unless the hiring entity satisfies all three of the following conditions: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

By contrast, the Borello test relies on multiple factors, including whether the potential employer has all necessary control over the manner and means of accomplishing the result desired (although such control need not be direct, actually exercised, or detailed). This factor must be considered along with other factors, including but not limited to: (1) whether the worker performing the services considers themselves as being engaged in an occupation or business distinct from that of the employer; (2) whether the work is a regular or integral part of the employer’s business; (3) whether the employer or the worker supplies the instrumentalities, tools, and the place for the worker doing the work; (4) whether the worker has invested in the business; (5) whether the worker hires their own employees; (6) whether the employer has a right to fire at-will; and (7) whether or not the worker and the potential employer believe they are creating an employer-employee relationship. Under Borello, no single factor controls the determination. Instead, the test relies on 13 different factors requiring consideration of the totality of circumstances attending the relationship. Accordingly, relief veterinarian classification can be complex, and subject to a case-by-case determination.

Both the Borello multifactor test and the ABC Test create a rebuttable presumption that the worker is an employee, and the hiring entity thus bears the burden of establishing that the worker is an independent contractor. The ABC Test is designed to be more predictable than the multifactor approach used under Borello. While AB 5 itself may not have changed the classification test applicable to veterinarians, the analytical landscape has shifted, and there are practical implications to understand for relief veterinarians.

You may ask, what is the big deal? Particularly if the worker wants to be classified as an independent contractor and the parties have agreed to this classification, and little to no risk flows to the worker. The party that bears the risk is the employer. In the event the worker is in fact misclassified, the employer could face significant liability—even if both the employer and employee both agree to the classification. Employees are entitled to certain rights that independent contractors do not typically enjoy, such as overtime, benefits, meal and rest breaks, and more. Furthermore, federal and state agencies may look back to determine if employers correctly withheld taxes, disability, and other payments, and paid for workers’ compensation benefits.

In the veterinary industry, many practices rely on relief veterinarians and the classification of these relief veterinarians as independent contractors. This article does not conclude that all relief veterinarians must be employees. Instead, it is a reminder to review any and all independent contractor agreements and their performance to determine whether these veterinarians may be classified as independent contractors. With recent legislation  adversely impacting independent contractor designations in multiple industries, many current independent contractors have been given a moment to pause and ask whether they are in fact properly classified. Again, the penalties associated with misclassification can be high and can lead to significant employer liability.

The bottom line is that although AB 5 has been in effect for nearly three years, California veterinarians are still largely left guessing whether their classification is proper under the Borello standard. Given the trends discussed above, it will likely become increasingly difficult and risky to classify workers as independent contractors. Consequently, it is important for practitioners utilizing relief veterinarian assistance to revisit their relationships to determine whether an independent contractor classification is correct. In uncertain cases, consult qualified legal counsel!

A Snapshot of Navigating Medical Leave in the Workplace

By: Jizell Lopez

Complex laws and regulations provide employees with certain rights and options during medical leave. It is the employer’s responsibility to ensure they understand the nuances of medical leave law to ensure not only compliance, but an easy transition for a medical concern the employee may face in their life. The laws related to medical leave have developed over time and cannot be found in a single statute. Instead, there are numerous applicable and overlapping statutes at both the state and federal level.

The Family Medical Leave Act (“FMLA”) is administered by the U.S. Department of Labor and provides job protected leave to an employee who is absent from work because of the employee’s own serious health condition or to care for specified family members with serious health conditions, as well as for the birth of a child and to care and bond for a new child. In order to be eligible for FMLA leave, an employee must: (1) work 1,250 hours during the 12 months prior to the start of leave; (2) work at a location where 50 or more employees work at that location or within 75 miles of it; and (3) have worked for the employer for 12 months.

The California Family Rights Act (“CFRA”) is administered by the California Civil Rights Department. The CFRA provides up to 12 weeks of unpaid leave in a 12 month period. The CFRA allows eligible employees to bond with a new child, or to care for themselves, a family member, or a designated person with a serious health condition. In order to be eligible for CFRA leave, an employee must: (1) work 1,250 hours during the 12 months prior to the start of leave; (2) work at a location where 5 or more employees work; and (3) have worked for the employer for 12 months.   

Many employees and employers assume that because the basic principles of FMLA and CFRA are alike, they should be administered the same. However, this is a common misconception. While both FMLA and CFRA provide up to 12-weeks of job-protected leave and have nearly identical eligibility requirements, there are significant differences that employers and employees should be aware of.

  • The CFRA provides protections to a larger portion of the workforce and leave will be granted for more familial relationships, including to care for a domestic partner, a grandparent, a grandchild, sibling, or designated person with a serious health condition. Under the FMLA, a covered family member is limited to a spouse, child, or parent.
  • The CFRA has strict limitations regarding employer requests to medical providers. Under the CFRA, medical certification forms cannot seek the identification of symptoms or diagnosis of an employee’s serious health condition from the healthcare provider. Whereas under the FMLA, employers may request a diagnosis of an employee’s serious health condition when necessary.
  • Under both the CFRA and FMLA, certifications from a medical provider may be requested considering the above caveats.  Under the FMLA, employers may require second and third medical certifications for employees or family members if the employer has a “reason to doubt” the validity of a certification. FMLA recertification may also be required every six months, even if the original certification has not expired. Whereas under the CFRA, employers may require certification for a employee’s medical condition only and may only require recertifications when the original certification expires.   

The nuances associated with CFRA and the FMLA are vital for both employers and employees to understand and, as such, should consult with an experienced employment attorney to navigate the complex laws associated with medical leaves.

Natural Disasters and the Employer’s Duty to Pay Employees

Recent natural disasters such as Hurricane Dorian and The Camp Fires in Butte County, California have left employers wondering whether they would be required to pay their employees during a temporary closure caused by a natural disaster. The answer varies depending on whether the employee is exempt from overtime (exempt employee) or subject to overtime (nonexempt employee).

For exempt employees, it generally depends on how long the natural disaster lasts.  Exempt employees usually get their full salary for any workweek in which they perform any work.  This means that if the temporary closure caused by a natural disaster is only for a partial workweek, then the exempt employee will continue to receive her full salary for that workweek.  However, the employer might be able to require the employee to use leave, if any, for the absence(s).  On the other hand, if the temporary closure is for an entire workweek (and the employee is not working remotely), then the exempt employee would not continue to receive her salary for that workweek. 

Limited exceptions exist for when an exempt employee’s salary may be reduced for full-day absences for personal reasons other than sickness or disability.  The federal Department of Labor has opined that an employee’s failure to report to work because of transportation issues during inclement weather when the office is open is an absence for personal reasons.  The position of the California Department of Labor Standards Enforcement is not clear.  Employers should exercise caution before reducing an exempt employee’s salary because they can jeopardize the employee’s exempt status by making improper salary deductions.

Different from exempt employees, non-exempt employees generally only get paid for the hours they actually work.  This means that if a natural disaster prevents non-exempt employees from reporting to work or there is no work to report for, they do not get paid.  California wage orders also contain an exemption from reporting time pay requirements for natural disasters.  Finally, employers should be aware of their own agreements or policies because employers can change the general rules for exempt and nonexempt employees through employment contracts, labor contracts and employment policies providing that the employees will be paid during temporary closures caused by a natural disaster. 

Employment Law Basics for Veterinarians


In California, four primary laws govern veterinarians’ interactions with their employees: Title VII of the Civil Rights Act of 1964, federal wage and hour laws, state wage and hour laws and California’s Fair Employment and Housing Act.

Title VII of the Civil Rights Act of 1964

This section of the Civil Rights Act of 1964 prohibits employers from discriminating on the basis of race, age, sex, religion, national origin or color. This law applies to all aspects of employment, including hiring, firing, recruitment, benefits, pay, promotions, layoffs, assignments, use of company facilities and more. If a prospective, current or former employee believes he or she has been a victim of discrimination, he or she can file a complaint against your veterinary practice with the Equal Employment Opportunity Commission. If the complaint cannot be resolved, it may lead to a lawsuit.

Federal Wage and Hour Laws

Under the Fair Labor Standards Act, the minimum wage you can pay an employee in the United States is $7.25 per hour. In addition, when an employee works more than 40 hours in a single week, federal law requires you to pay a wage equal to at least 1.5 times the employee’s usual rate.

State Wage and Hour Laws

The state of California mandates a minimum wage of $9.00, which is higher than the federally-mandated minimum wage. As a result of this law, veterinarians in California must pay their employees at least $9.00 for every hour worked. As of January 1, 2016, the minimum wage in California will increase to $10.00. Likewise, California requires overtime pay equal to at least 1.5 times the employee’s regular hourly rate for every hour worked in excess of 40 per week or 8 per day. The minimum amount of overtime pay increases to double the employee’s regular rate for hours worked in excess of 12 in a single day.

Fair Employment and Housing Act

The Fair Employment and Housing Act’s requirements for veterinarians are similar to those of the Title VII of the Civil Rights Act of 1964. However, in addition to all of the protections provided by the Civil Rights Act, the Fair Employment and Housing Act also prohibits employers from discriminating against current or prospective employees because of sexual orientation, gender, gender expression, gender identity, pregnancy, breastfeeding, military of veteran status, medical conditions, marital status, ancestry, disability or genetic information.

Be Careful What You Ask For: How To Make Sure Your Return-to-Work Policies Don’t Violate the ADA

As the costs of doing business increase each year, many employers are looking for effective ways to ensure productivity among their employees, promote workplace safety and prevent chronic absenteeism. Many employers, for example, require that employees returning from a medical leave of absence undergo a “return-to-work” medical exam to ensure that the employee can safely perform his or her job functions.

Generally, return-to-work medical exams or disability-related inquiries are legal. Employers can ask questions about the medical issues surrounding an employee’s disability or leave. However, to comply with the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act, the exams and disability-related inquiries must be limited in scope and narrowly tailored to evaluate whether the employee can perform the essential functions of the job. The employer cannot use the employee’s medical leave as an excuse to make broad, intrusive disability-related inquiries or subject the employee to medical exams that have nothing to do with why the employee went out on medical leave.

An Example of What NOT To Do
In Scott v. Napolitano, an employee suffered a number of physical injuries and psychological disorders that required him to take medical leave. Over a period of six years the employee suffered sinusitis, an injury to his right arm and shoulder, and was diagnosed with depression, anxiety and work-related stress. The employee’s supervisor became concerned that these health issues would impact his ability to perform the full range of his job duties and be trusted with his government issued side-arm. The supervisor recommended that the employee complete a “fitness for duty” examination.

Prior to the scheduled exam, the employee was asked to fill out a medical questionnaire by the examining physician. Many of the questions were very broad and not limited to a specific time-frame. For example, the employee was asked if he had ever been treated for a mental condition and to list all medications he was currently taking. In addition to the questionnaire, the employee was required to sign a release that permitted any doctor, hospital or clinic to release all of the employee’s medical information to his employer.

The employee refused to answer many of the questions in the medical questionnaire because he believed they violated his legal rights. Further, the employee crossed out the language of the release and wrote that he would only authorize the release of the results of the upcoming “fitness for duty” exam, not any other personal medical records. The employee was warned that he had 14 days to answer all of the questions and sign the full release. When the employee did not comply, he was suspended for insubordination and was advised that he must answer the questions and sign the release. The employee again refused and was terminated. The employee sued, alleging the employer’s practices violated the ADA and the Rehabilitation Act.

The court agreed with the employee and found that the questions in the medical questionnaire were impermissibly over-broad disability-related questions. The court held that medical exams and inquiries cannot be required unless those exams and/or inquiries are shown to be job-related and consistent with business necessity. A business necessity may include ensuring workplace safety or preventing excessive absences. Further, once a business necessity is shown, the exam or inquiry cannot be any broader or more intrusive than needed for the employer to determine if the employee is currently able to perform the essential functions of his or her job. For the most part, exams or inquiries related to the specific medical condition for which the employee took leave will be all that is warranted and should be limited to a specific time-frame.

Lessons for You
Return-to-work medical exams or disability-related inquiries are permissible as long as you comply with the ADA and Rehabilitation Act. Remember that these exams and inquiries must be driven by a business necessity, such as ensuring workplace safety. Also, the exams or inquiries must be limited to determining whether the employee can currently perform his or her essential job duties. Exams or inquiries not limited in time or tailored to the specific medical condition for which the employee took medical leave may violate the ADA and Rehabilitation Act and subject you to liability.

Employees’ Race Matters: Some Race-Based Decisions are Permitted under California Employment Discrimination Law

California employers are, or should be, well-versed with the Fair Employment and Housing Act (FEHA).  The FEHA is California’s anti-discrimination law.  It applies to employers with 5 or more employees and prohibits employment discrimination based on race.  This does not mean that employers are prohibited from making any decision based on race; rather, FEHA protects an employee from discrimination based on the race of the employee.

In Diego v. City of Los Angeles (2017) 15 Cal.App.5th 338, two police officers fatally shot and killed an unarmed, innocent man with autism.  The officers were removed from the field following an investigation into the shooting.  Afterwards, the officers sued for disparate treatment discrimination under the FEHA, alleging that they had been treated differently based on race since they were Hispanic and their victim was African-American.  The officers prevailed at trial and won a verdict, but the court of appeal overturned the verdict because the victim’s race was an inappropriate consideration.  Employment decisions can be based on “broader political concerns,” including the race of someone who is not the employee as long as the race of the employee was not a substantial factor in the employment decision.  So, the LAPD could consider the community reaction to the shooting and decide not to return any employee to the field after fatally shooting an African-American without violating FEHA.   The officers’ evidence failed to demonstrate that African-American officers, or any other non-Hispanic officers, would have been treated differently than they were treated following the shooting, and so their evidence could not support an employment discrimination verdict.

This case serves as a reminder that for FEHA discrimination claims, it’s the employee’s race that matters. FEHA guarantees equal treatment in the workplace to employees, so an employment discrimination claim must be based on the employee’s own protected characteristics.  Even though the employees were not able to sue the employer under FEHA for the alleged unequal treatment of other individuals based on race, this case does not mean that there is no protection from such treatment under other laws, just that such discrimination is not employment discrimination.


Besides race, the FEHA also prohibits discrimination based on religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

  By Samson R. Elsbernd

VLOG: Employers May Implement Vacation Accrual Waiting Periods

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

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Employers May Implement Vacation Accrual Waiting Periods

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

In Minnick, the defendants-employers’ vacation policy provided that an employee’s vacation benefits began to accrue after the end of the employee’s first year. The policy also expressly provided that “[t]his does not mean that you earn 1/12th of one week’s vacation accrual each month during your first year. You must complete one year of service with the company to be entitled to one week vacation.”

Minnick worked for defendants for six months. Consistent with employers’ policy, Minnick was not paid any vacation wages in his final paycheck. Minnick sued to recover vacation wages, arguing that the policy violated the law against forfeiture of earned vacation and that the policy did not clearly provide for a waiting period. The Court of Appeal disagreed, holding that employers may lawfully impose a waiting period before providing paid vacation time. The court determined that an employer does not “contract around” the forfeiture prohibition by providing that an employee does not begin to earn vacation pay until a certain date. Finally, the Court of Appeal found no merit in Minnick’s argument that the policy was ambiguous. By contrast, the court found that the policy statement that employees “must complete one year of service with the company to be entitled to one week vacation” made it clear that employees were not entitled to any pro rata vacation pay during their first year of employment.

This case illustrates the importance of maintaining current and clear employee handbooks and policies. Any policy requiring a waiting period before paid vacation accrues should be explicit and straightforward. However, always keep in mind that once an employee becomes eligible to earn paid vacation time, the employer must pay the employee for any unused vacation time and such time cannot be forfeited.


Earlier this year we told you about a new law requiring employers to provide written notice to employees about the rights of victims of domestic violence, sexual assault, and stalking. Employers with 25 or more employees are required to provide the notice to all new employees at the time of hire and to current employees upon request, and had been waiting for the Labor Commissioner to create a notice for them to use. The notice is available now. You can follow this link to get a copy: Victims of Domestic Violence Leave Notice

  By Bianca Samuel 


The Power of Positivity in the Workplace

Most advice from lawyers to employers tends to focus on compliance with legal obligations imposed by statute or regulation, conformity with requirements contained in policy manuals, employee training in the area of sexual harassment prevention and like subjects, and similar “law-based” duties. What sometimes gets lost in the miasma of legal compliance is a more basic truth: The number one thing any employer can do to cultivate a vibrant work environment, and minimize employee complaints (both formal and informal), is simply to…be positive and accessible.

It is basic human nature that people are more likely to overlook grievances when the subject of the grievance —   either individually or institutionally —    is otherwise viewed positively. Taking a moment during the course of the day to say “hello” to your employees, or to ask about a weekend, or simply to look your employees in the eye while they tell you about something, can pay untold dividends that you may never know exist. Not only does such interaction make your employees feel valued and validated, but you may learn something useful about their interests or skill sets that you didn’t previously know. Moreover, unless you are the consummate introvert, you yourself will feel good about the interaction, and be more fulfilled from having at least a basic sense of who your employees are, and what makes them tick.

By contrast, if your sole interactions with your employees are work-centered (“John/Jane, please take the following memo….”), your employees are likely to see themselves as nothing more than cogs in a machine, with no independent reason for enthusiasm or loyalty beyond the paycheck they draw. Such an approach also needlessly divests you of an opportunity for your employees to see you as a human being, rather than just a larger/more senior cog. If you are viewed only as “the management,” employees are less likely to pump their own brakes on the lodging of a complaint for something that they see as offensive or actionable.

So, the next time you are tempted to power walk to your office and close the door, devote ten seconds to thinking about whether you have yet had a positive interaction with one or more employees that day. If not, take a minute or two to do so, even if it’s just to say “how are you today, Sydney”? The worst that can happen is that you find something out that you didn’t already know. And hey, is that so bad?

By Daniel L. Baxter

Wilke Fleury Attorney Daniel L. Baxter Lends Expertise on Dealing with Bad Reviews

Maybe a friend sends you a link to it.

Maybe it’s a Facebook post.

Maybe it’s a Yelp review.

But it makes your blood boil as you read each vicious word that a client has written.

Words that publicly smear you as a business person and as a professional.

Words that aren’t fair.

What do you do? Daniel Baxter thinks you should take a deep breath and walk away from your screen.

“Just as often as not, the response to a Yelp review or a social media post can have more negative ramifications than the review itself,” said the partner at Sacramento law firm Wilke, Fleury, Hoffelt, Gould & Birney, LLP.

The digital age has brought many tools to make the lives of vets easier.

It also brings its share of challenges.

And a bad online review or an angry social media rant by a client is a challenge most vets will face over the course of their career.

Baxter, who specializes in complex business litigation and trial work, has represented the California Veterinary Medical Association in various matters over the years. He also recently presented at the Pacific Veterinary Conference, which ran June 29-July 2 in Long Beach, California, on how to be a veterinarian in the digital age.

Read the full article here: 

By Daniel L. Baxter

VLOG: Disclosures for Background Checks: A Cautionary Tale

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Disclosures for Background Checks: A Cautionary Tale

Background checks are oftentimes a condition of employment.  Employers who seek to perform background checks must comply with applicable state and federal law before they can obtain such information.  This generally includes statutory disclosures and obtaining authorization from the applicant.  Employers who fail to comply with the letter of the law can be sued for violation of the statutory requirements, even when the employee has not suffered any actual damages from noncompliance.

Syed v. M-I, LLC (2017) 853 F.3d 492 is instructive.  The employer was sued under the federal Fair Credit Reporting Act (“FCRA”) because its disclosure document for seeking a background check on applicants did not comply with the FCRA.  The FCRA requires a clear and conspicuous written disclosure before a background check can be performed for employment purposes.  The statute also requires a written authorization for the background check, and permits the authorization to appear in the same document as the disclosure.  The problem in this case was that the disclosure document contained too much information.  Besides the disclosure and the authorization, the employer also included a release of liability.  The court of appeal determined that the FCRA was not ambiguous in its requirement of a document consisting “solely” of the disclosure.  The only exception was for the authorization to be included as part of the disclosure document, so by including the release despite the statute’s unambiguous language, the employer willfully violated the FCRA.

Notably, the employee did not claim that he suffered any actual damages in his lawsuit.  Afterall, he was hired.  He subsequently learned of the error when he reviewed his personnel file and saw the release that he signed when he was as an applicant.   Nevertheless, he was still able to sue his employer for statutory and punitive damages, and could seek to recover his attorney fees.  This case is a lesson to employers of the importance of getting it right, particularly in an area so heavily regulated by statute as are background checks.  Errors in records can stick around for quite some time, and employers may face lawsuits for seemingly harmless errors.  Employees may even have help in looking for and finding problems because the FCRA, like numerous employment statutes, allow employees to recoup their attorney fees when they prevail on their statutory claims.

 By Samson R. Elsbernd

VLOG: And on the Seventh Day, Employees Rest

California statutes provide that employees are entitled to one day’s rest in seven and that employers cannot cause employees to work more than six days in seven.  So just what does this mean?  Are full-time employees entitled to one day of rest in each workweek or are employees entitled to one day of rest on a rolling basis, across workweeks?  It took an employee class action lawsuit, but employers finally have the answer.

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And on the Seventh Day, Employees Rest

California statutes provide that employees are entitled to one day’s rest in seven and that employers cannot cause employees to work more than six days in seven.  So just what does this mean?  Are full-time employees entitled to one day of rest in each workweek or are employees entitled to one day of rest on a rolling basis, across workweeks?  It took an employee class action lawsuit, but employers finally have the answer.

In Mendoza v. Nordstrom, Inc. (Cal. 2017) 216 Cal.Rptr.3d 889, employees filed a class action lawsuit after they had to work more than six days in a row.  Nordstrom’s workweek ran from Sunday to Saturday.  The lead plaintiff, Mendoza, worked seven or more days in a row over two workweeks on a number of occasions.  For example, in one instance, Mendoza worked Monday, March 23 to Sunday, March 29, 2009, which equated to 6 days in the first workweek and 1 day in the second workweek.  Nordstrom removed the case to federal court, and the federal court asked the California Supreme Court to determine whether the day of rest applies on a workweek basis or on a rolling basis.  The California Supreme Court determined that it applies on a workweek basis.

California employers now know that employees get one day of rest in each workweek and should be mindful of the workweeks that they have established for their employees, particularly if they have established different workweeks for different employees.   Employees can choose to work on their day of rest, but employers must be neutral with respect to that decision.  In other words, employers cannot incentivize employees to forego their day of rest and must inform employees of their entitlement to the day of rest before allowing them to forego it.

By Samson R. Elsbernd