California Appellate Tracker

Mendoza v. Nordstrom, Inc.

May 16, 2017

The Labor Code requirement that an employer give an employee a day of rest after six days of work applies on a calendar week basis, not a rolling basis, and applies during any week in which the employee works more than six hours in any one day.

After receiving the California Supreme Court’s answers to certified questions, the Ninth Circuit dismisses this day-of-rest suit brought under PAGA for alleged violations of Lab. Code 551 and 552. Since the named plaintiffs did not work more than six consecutive days in any single Nordstrom work week, Nordstrom did not violate the cited Labor Code sections as to them. Plaintiffs could not belatedly add new plaintiffs to carry on the suit in place of the original named plaintiffs. PAGA is not like a class action. Among other things, it requires pre-suit notice to the Labor and Workforce Development Agency’s Division of Labor Standards Enforcement by the aggrieved employee. Plaintiffs gave the required notice, but they weren’t aggrieved. Substitute plaintiffs would not have given the required notice. They may, however, file a new suit.

Ninth Circuit Court of Appeals (Graber, J.); August 3, 2017; 2017 WL 3297699

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Mendoza v. Nordstrom, Inc.

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