The Ninth Circuit today requested that the Supreme Court decide three questions of California employment law. In Mendoza v. Nordstrom, Inc., the Court of Appeals asked these questions: (1) 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? (2) 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? (3) 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 Ninth Circuit explained why it wants the Supreme Court’s help: “no controlling California precedent answers any of the certified questions of statutory interpretation,” and, “because the questions that we certify are of extreme importance to tens of thousands of employees in California, considerations of comity and federalism suggest that the court of last resort in California, rather than our court, should have the opportunity to answer the questions in the first instance.”
By our count, it’s been a year since the Ninth Circuit last requested that the Supreme Court decide a question of California law. It might be around the middle of April — give or take — when we learn whether the court will agree to answer the Mendoza questions. The odds are generally better than even that it will. Additionally, in the last few years, the court has twice granted Ninth Circuit requests for decisions of employment law issues specifically. (Here and here.)
[February 24 update: The Supreme Court has now docketed the Ninth Circuit’s request.]