MENDOZA v. NORDSTROMUnited States Court of Appeals for the Ninth Circuit’s Request to Answer Question of State LawCal.Feb 23, 20159224611 © FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTOPHER MENDOZA, an No. 12-57130 individual, on behalf of himself and all other persons similarly situated, D.C. No. Plaintiff-Appellant, 8:10-cv-00109- CJC-MLG MEAGAN GORDON, Plaintiff-Intervenor, SUPREME COURT , FILED NORDSTROM,INC., a Washington FEB 2 3 201 Corporation authorized to do Frank A. MoGuire Clerk business in the State of California, Defendant-Appellee. Deputy CHRISTOPHER MENDOZA,an individual, on behalf of himself and all other persons similarly situated, Plaintiff, and MEAGAN GORDON, Plaintiff/Intervenor-Appellant, V. NORDSTROM,INC., a Washington Corporation authorized to do business in the State of California, Defendant-Appellee. Filed February 19, 2015 MENDOZA V. NORDSTROM No. 12-57144 D.C. No. 8:10-cv-00109- CJC-MLG ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA Before: Susan P. Graber, Ronald M. Gould, and Consuelo M.Callahan, Circuit Judges. Order MENDOZA V. NORDSTROM 3 SUMMARY Certification to California Supreme Court The panelcertified three questions to the Supreme Court of California: (A) California Labor Code section 551 provides that “[e]very person employed in any occupation oflabor is entitled to one day’s rest therefrom in seven.” Is the required day of rest calculated by the workweek, oris it calculated on rolling basis for any consecutive seven- day period? (B) California Labor Code section 556 exempts employers from providing such a day ofrest “when the total hours of employmentdo not exceed 30 hours in any week or six hours in any one day thereof.” (Emphasis added.) Does that exemption apply when an employee worksless than six hours in any one dayofthe applicable week,or doesit apply only when an employee worksless than six hours in each day of the week? (C) 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? * This summary constitutes no part of the opinion ofthe court. It has been prepared by court staff for the convenience ofthe reader. 4 MENDOZA V. NORDSTROM COUNSEL André E. Jardini (argued) and K.L. Myles, Knapp, Petersen & Clarke, Glendale, California, for Plaintiff-Appellant. R. Craig Clark (argued), James M. Treglio, and Laura M. Cotter, Clark & Treglio,, San Diego, California; David Roger Markham, The Markham Law Firm, San Diego, California, for Plaintiff/Intervenor-Appellant. Julie A. Dunne (argued), Dawn Fonseca, Lara K. Strauss, Michael G. Leggieri, and Joshua D. Levine, Littler Mendelson, P.C., San Diego, California, for Defendant- Appellee. ORDER GRABER,Circuit Judge: Werespectfully ask the Supreme Court of California to exercise its discretion to decide the three certified questions set forth in Part II ofthis Order, below. See Cal. R. Ct. 8.548. The answers to these questions of California law wouldbe dispositive of the appeal before us, and noclear controlling California precedent exists. Jd. Moreover, because the questionsthat wecertify are ofextreme importanceto 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 answerthe questionsin the first instance. See Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192, 1196-97 (9th Cir. 2013); Klein v. United States, 537 F.3d 1027, 1028 (9th Cir. 2008). MENDOZA V. NORDSTROM 5 I. Administrative Information Weprovidethe following information in accordance with California Rule of Court 8.548(b)(1): The consolidated caption for these casesis: CHRISTOPHERMENDOZA,anindividual, on behalfof himself and all other persons similarly situated, Plaintiff- Appellant, MEAGAN GORDON,Plaintiff-Intervenor /Appellant, V. NORDSTROM, INC., a Washington Corporation authorized to do business in the State of California, Defendant-Appellee, and the case numbers in our court are 12-57130 and 12- 57144. The names and addresses of counsel are: For Plaintiff-Appellant Mendoza: André Emilio Jardini, K.L. Myles, Knapp, Petersen & Clarke, Glendale, California. For Plaintiff /Intervenor-Appellant Gordon: R. Craig Clark, Clark & Treglio, San Diego, California; David Roger Markham, The Markham Law Firm, San Diego, California. ForDefendant-AppelleeNordstrom, Inc.: Julie A. Dunne, Dawn Fonseca, Michael G. Leggieri, Joshua D. Levine, Littler Mendelson, P.C., San Diego, California. 6 MENDOZA V. NORDSTROM As required by Rule 8.548(b)(1), we designate Christopher Mendoza and Meagan Gordonasthe petitioners, if our request for certification is granted. They are the appellants before our court. II. Certified Questions Wecertify to the California Supreme Court the following three questions of state law that are now before us: (A) California Labor Code section 551 provides that ‘“fe]lvery 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,oris it calculated on a rolling basis for any consecutive seven-day period? (B) California Labor Code section 556 exempts employers from providing such a dayofrest “whenthe 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 worksless than six hours in any one day of the applicable week,or doesit apply only when an employee worksless than six hours in each day of the week? (C) 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? Our phrasing of the questions should not restrict the California Supreme Court’s consideration of the issues MENDOZA V. NORDSTROM 7 involved; that court may reformulate the questions. Cal. R. Ct. 8.548(f)(5). Weagree to accept and to follow the decision of the California Supreme Court. Cal. R. Ct. 8.548(b)(2). See also Klein, 537 F.3d at 1029 (holding, with respect to a certified question, that the Ninth Circuit is bound by the California Supreme Court’s interpretation of California law). Ill. Statement of Facts Christopher Mendoza and Meagan Gordon are former employees ofNordstrom,Inc., in California. Nordstrom is a retail department store that operates in many locations throughout the state of California, employing more than 11,000 people statewide. Mendoza worked for Nordstrom from March 2007 to August 2009,first as a barista and later as a sales representative in one of Nordstrom’s San Diego locations. Gordon worked in the fitting room at one of Nordstrom’s “Rack”locations from July 2010 to February 2011. While employed at Nordstrom, Mendoza worked more than six consecutive days on three occasions: (1) between January 26 and February 5, 2009, he worked 11 consecutive days, on two of which he worked less than six hours; (2) between March 23 and 29, 2009, he worked seven consecutive days, on three of which he workedless than six hours;and (3) between March 31 and April 7, 2009, Mendoza worked eight consecutive days, on five of which he worked less than six hours. On each of those occasions, Mendoza was not originally scheduled to work more than six consecutive days,but he didso after being askedbyeitherhis supervisor or a co-workerto fill in for another employee. 8 MENDOZA V. NORDSTROM Gordon worked more than six consecutive days on one occasion, from January 14 to 21, 2011. Ontwo ofthose days, Gordon workedless than six hours. Mendoza sued Nordstrom,alleging that it had violated California Labor Code sections 551 and 552 byfailing to provide him with one day’s rest in seven on three occasions. He brought the action in California state court; Nordstrom removedto federal court. Mendozaalso pleaded other claims that are not at issue in the present appeal. He filed his complaint on behalf of a class of similarly situated hourly, non-exempt Nordstrom employees in California, and he brought the relevant claim pursuantto the California’s Labor Code Private Attorneys General Act of 2004. See Cal. Lab. Code §§ 2698—2699.5. Gordon’s complaint in intervention alleged the same causes of action as those in Mendoza’s complaint. With respect to the day-of-rest claims, the district court held a benchtrial. The district court then ruled: (1) the day- of-rest statute, California Labor Code section 551, applies on a rolling basis to any consecutive seven-day period, rather than by the workweek; (2) but California Labor Codesection 556 exempts Nordstrom from that requirement, because each plaintiffworked less than six hours on at least one day in the consecutive seven days of work; and (3) even if the exemption did not apply, Nordstrom did not “cause” Mendoza or Gordon to work more than seven consecutive days, within the meaning of California Labor Code section 552, because there was no coercion; Plaintiffs waived their rights under California Labor Codesection 551 by accepting additional shifts when they were offered. The court dismissed the action; a timely appeal to this court followed, MENDOZA V. NORDSTROM 9 raising the certified questions of law described in Part II, above. IV. Explanation of Certification Asnoted,no controlling California precedent answers any of the certified questions of statutory interpretation. We recognize that, under California law, statutory interpretation begins with the text. People v. Scott, 324 P.3d 827, 829 (Cal. 2014). But the text of the applicable statutes is ambiguous; we are aware of no pertinent legislative history; and the answer to the certified questions is not obvious, for the reasons given below. A. DayofRest California Labor Code section 551 providesthat “[e]very person employedin any occupationoflaboris entitled to one day’s rest therefrom in seven.” Section 552 safeguards that statutory entitlement by providing that “[n]o employer of labor shall cause his employees to work more than six days in seven.” Consider the following example. An employer whose workweek(like Nordstrom’s) begins each Sunday schedules a full-time employee to work as follows: Sunday Monday Tuesday Wednesday Thursday Friday Saturday OFF WORK WORK WORK WORK WORK WORK WORK WORK WORK WORK WORK WORK OFF employer has violated them. If the statutes apply to any consecutive seven days, the If, on the other hand, the 10 MENDOZA V. NORDSTROM statutes apply to each workweek, the employer has not violated them.' Eachinterpretation finds some support in the ambiguous text and in policy considerations. On the onehand,neither section 551 nor section 552 uses the word “workweek”to suggest a measuring period. Yet the term “workweek” is used in surrounding provisions of the Labor Code—suchas section 510 (requiring overtime pay), section 511 (permitting alternative workweeks), section513 (governing makeup worktime), and section 556 (setting forth an exemption from sections 551 and 552)—demonstrating that the legislature could have used the workweek concept had it intended to do so. We may notinsert a term that the California legislature chose to omit. See Cal. Civ. Proc. Code § 1858 (“In the construction of a statute... , the office of the Judge is .. . not to insert what has been omitted, or to omit what has been inserted... .”). Moreover, the purpose of the law plainly is to avoid overworking employees by providing a regular day of rest in most circumstances. Allowing 12 consecutive days ofwork every two weeks could run counter to that purpose. On the other hand, section 510(a), pertaining to overtime, provides in part that “any work in excess of eight hours on any seventh day of a workweek shall be compensated at the rate of no less than twice the regular rate of pay of an employee.” That wording hints both that the concept of working a seventh day encompasses the concept of the ' Given the facts alleged by Mendoza, the answerto this question will determine whether Nordstrom did or did not violate these provisions on someoccasions. MENDOZA V. NORDSTROM 11 workweek,andthat the prohibition on working seven days is not absolute. In addition, Wage Order No. 7 provides: The provisions of Labor Code Sections 551 and 552 regarding one (1) day’s rest in seven (7) shall not be construed to prevent an accumulation ofdays ofrest[in circumstances not applicable here]; provided, however, that in each calendar month, the employee shall receive the equivalent of one (1) day’s rest in seven (7). Cal. Code Regs.tit. 8, § 11070(3)(H). The Wage Order also states that “[a]n employee may be employed on seven (7) workdays in one workweek when the total hours of employment during such workweekdo not exceed 30 and the total hours ofemployment in any one workdaythereofdo not exceed six (6).” Jd. § 11070(3)(F) (emphasis added). The Wage Orderis “to be accorded the same dignity” as a statute andis “presumptively valid.” BrinkerRest. Corp. v. Superior Court, 273 P.3d 513, 527-28 (Cal. 2012). The phrasing of the Wage Order suggests obliquely—but by no means directly—that sections 551 and 552 apply to a “workweek” andthat the overarching purposeofthe law can be met when an employee receives four days off per month. Wefind both interpretations plausible. We have found no legislative history that bears on this question, whichaffects nearly all California employers. Nor have we found any California appellate case that answersit. 12 MENDOZA V. NORDSTROM B. Exemption California Labor Code section 556 exempts an employer from the day-of-rest requirement “when the total hours [worked by an employee] do not exceed 30 hours in anyweek or six hours in any one day thereof.” Grammatically, the second half of that formulation is ambiguous. Considerthis example; an employee must work for seven consecutive days in one single workweek, as follows: 8 hours, 9 hours, 5 hours, 8 hours, 8 hours, 8 hours, and 9 hours. Has the employer violated the statute?’ Onthe one hand, the more natural reading ofthe wordsis that an employer need not provide a day of rest if an employee worksless than six hours in “any”single day ofthe applicable week. The district court adopted that reading by emphasizing the word “any,” which very often means “one.” (“Pick any card from the deck.’’) On the other hand,“any” can mean “each”or “all”: “any child knows the answer to that simple question.” The purpose of the statute is to exempt an employer from providing a day of rest only with respect to part-time employees. For example, citing section 556, Witkin refers to “part-time employees” as employees “whose work hours[do] not exceed 6 hours per day or 30 hours per week.” 3 B.E. The answerto this question governs a portion ofthe outcomehere, for two reasons. First, both Mendoza and Gordon workedless than six hours in at least one day ofthe seven-day period (howeverdefined), but neither worked less than six hours in all seven days of the applicable period (howeverdefined). Second, the evidence in the record suggests that some hourly, non-exempt employees worked more than 14 consecutive days; as to some of them, the answerto this question may dispose of the day-of- rest claim. MENDOZA V. NORDSTROM 13 Witkin, Summary of California Law, Agency and Employment § 361(2), at 456 (10th ed. 2005); see also Cal. Dep’t of Industrial Relations, Div. of Labor Standards Enforcement, Understanding AB 60: An In Depth Lookat the Provisions of the “Eight Hour Day Restoration and Workplace Flexibility Act of 1999” (Dec. 23. 1999), available at https://www.dir.ca.gov/dlse/AB60update.htm (referring to employees whose“total hours ofemployment do not exceed . . . six hours in any one day of th[e] week”as working “a part-time schedule”). Onceagain, we find both interpretations plausible, have discovered no useful legislative history, and have unearthed no California appellate case to guide us. And onceagain,the obligations of thousands of California employers, and the rights oftens ofthousandsofCalifornia workers, areat stake. C. “Cause” to Work Under section 552, Nordstrom may not “cause” its employees to work more than six days in seven. That provision dates back to 1893, when it was enacted aspart of the California Penal Code. See 1893 Cal. Stat. 54, § 301(1); Cal. Penal Code § 301(1), at 1044 (Deering 1893). But the legislative history sheds no light on the precise meaning of “cause”in this context.? In Brinker, a putative class of hourly restaurant employeessuedBrinker Restaurant Corporation,allegingthat * The answerto this question may determine the outcomeofPlaintiffs’ claims because, depending onthe definition of“cause,” the employer may or may not have “cause[d]” them to work more than the requisite number of days. 14 MENDOZA V. NORDSTROM Brinkerhad failed to provide its employees with the meal and rest breaks required under California state law. 273 P.3d at 521. The question for decision was whether an implicit waiver, aS distinct from a mutual written waiver, was effective to relieve the employer of liability for failure to provide such a break. The California Supreme Court held that an employer mustrelieve the employeeofall duty during the requisite break, but that the employer has no duty to ensure that the employee does notin fact choose to continue to work during that time. Jd. at 537-38. The district court relied on Brinker to conclude that, so long as an employee is not compelled to workin violation of the day-of-rest statute, the employer has not violated the statute. We are not persuaded that Brinker provides guidance here. The statutory text is different. California Labor Code section 512(a) prohibits an employer from employing someone for more than five hours per day “without providing” a meal period, for example. The verb to “provide” generally means to “supply.” Webster’s Third New International Dictionary 1827 (anabridged ed. 1961) (noting that “PROVIDE and SUPPLYareoften interchangeable”). The employerhadonly to “supply”a break,not also to ensure that each employee used what was supplied. By contrast, the question here is whatact on the part ofan employer counts as “causing” an employee to work more than the day-of-rest statutes allow. To “cause” can mean to “induce,” see id. at 356, so is it enough for an employer to encourage or reward an employee who agrees to work additional consecutive days? In another context, causation is defined in termsofthe “natural and probable consequence”of one’s action. People v. Roberts, 826 P.2d 274, 300 (Cal. 1992). Is it enough for an MENDOZA V. NORDSTROM 15 employer to permit employees to trade shifts voluntarily, when a natural and probable consequence may be that an employee works more than the day-of-rest statutes allow? Brinker does not suggest an answer. Cf Cal. Lab. Code § 513 (prohibiting an employer from “encouraging or otherwise soliciting” a request for makeup work time). In addition to the linguistic distinctions found in the relevantstatutes,there are practicaldistinctions between meal and rest breaks and days of work. An employer knowsthat an employee is working on a particular day. But an employer may or may not know,and may even have no way to know, whether a particular employee chooses to keep working through a lunch breakor rest break. Asis the case with the other questions, the statutory text is unclear. California employers and employeesneed to know whatthe statute means. Nolegislative history or appellate decision clarifies the issue. D. Summary As weread California law, we are uncertain whether the district court correctly or incorrectly interpreted the relevant statutes. The consequencesofanyinterpretation of the day- of-rest statutes will have profound legal, economic, and practical consequences for employers and employees throughout the state of California and will govern the outcome of manydisputes in both state and federal courts in the Ninth Circuit. We therefore submit that these questions are worthy of decision by the California Supreme Court. Becausethe outcomeofthis case depends on the answers, we also submit that this case presents a suitable vehicle for the 16 MENDOZA V. NORDSTROM California Supreme Court to address these questions. Cal. R. Ct. 8.548(a). V. Accompanying Materials The clerk of this court is hereby directed to file in the California Supreme Court, underofficial seal of the United States Court of Appeals for the Ninth Circuit, copies ofall relevant briefs and excerpts ofthe record, and an original and ten copies of this order and request for certification, along with a certification of service on the parties, pursuant to California Rule of Court 8.548(c), (d). This case is withdrawn from submission. Further proceedings before us are stayed pendingfinal action by the California Supreme Court. Theparties shall notify the clerk of this court within seven days after the California Supreme - Court accepts or rejects certification, and again within seven days if that court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.