9th Circuit Asks California Supreme Court|to Decide Issue of ‘Extreme Importance’


     SANTA ANA, Calif. (CN) – The 9th Circuit on Thursday asked the California Supreme Court to settle a question of “extreme importance” to tens of thousands of workers: how many days they have to work without a day off.
     Former Nordstrom salesman Christopher Mendoza filed a Superior Court class action in 2009 against the fashion retailer, claiming he had worked more than six days in a row without having a day off.
     Under California labor laws, Mendoza said, he should have had one day’s rest in every seven days he worked.
     After the case was removed to Federal Court for a bench trial, U.S. District Judge Cormac Carney said California law applies to any rolling period in which an employee worked seven days in a row, rather than by workweek.
     But Carney found that Nordstrom did not violate labor laws because Mendoza had worked less than six hours for at least one day during the consecutive days on the job.
     In addition, Nordstrom did not coerce Mendoza to work more than seven consecutive days. He had agreed to take them, Carney ruled.
     On Thursday, the 9th Circuit certified three questions to state supreme court, noting that there is no controlling law or appeals court precedent to guide its decision.
     The panel asked the court to decide if under state labor laws the day off rule is calculated based on a workweek or on any instance in which a person works for seven days in row.
     It also asked the supreme court to rule on exemptions to the rest day requirement.
     “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?” Judge Susan P. Graber wrote.
     The court also was unclear on what it means for an employer to “cause” an employee to work more than six days in seven.
     Does it mean “force, coerce, pressure, schedule, encourage, reward, permit, or something else?” Graber asked.
     “The answers to these questions of California law would be dispositive of the appeal before us, and no clear controlling California precedent exists,” Graber wrote. “Moreover, 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.”
     The 9th Circuit stayed the case pending the supreme court’s decision.
     Judge Ronald M. Gould and Consuelo M. Callahan joined Graber on the panel.

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