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Media Alerts - Mendoza v Nordstrom, Inc.
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October 26, 2017
  Mendoza v Nordstrom, Inc.
Headline: Ninth Circuit panel rejects employee claims brought pursuant to the California Labor Code Private Attorneys General Act ("PAGA") that the employer violated the State's "day of rest law" and affirms the district court's decision refusing to allow substitute plaintiffs.

Areas of Law: Employment Law; Civil Procedure

Issues Presented: Whether the district court erred in holding employees did not have a valid claim for violation of California's "day of rest" law?
Whether the district court abused its discretion by refusing to allow substitute plaintiffs and dismissing the case?

Brief Summary: The Ninth Circuit panel held that the district court properly dismissed the hourly, non-exempt former employees' suit against their employer under PAGA, Cal. Lab. Code §§ 2698-2699.5, for violation of California's "day of rest" laws, Cal. Lab. Code §§ 551 and 552. The court relied on responses to questions certified to the California Supreme Court to hold the employees were not "aggrieved" under the requirements of Cal. Lab. Code § 2699.3 where neither employee worked more than six consecutive days in any one work week and the employer did not "cause" the employees to work more than seven consecutive days. Because there was no coercion, the employees waived their rights under § 551 by accepting additional shifts when they were offered. Finally, the panel held the district court was not obligated to permit the addition or substitution of plaintiffs under Fed. R. Civ. P. 21.

Significance: This case clarifies the meaning and application of California's day of rest law. It also reveals that a district court does not abuse its discretion in denying a request to add substitute representatives in a PAGA action when the proposed substitutes have not exhausted administrative remedies and where the plaintiffs declined the opportunity to add substitute representatives well before trial.

Extended Summary: Christopher Mendoza ("Mendoza") and Meagan Gordon ("Gordon") are former employees of Nordstrom, Inc. ("Nordstrom") who claim the employer violated California's day of rest law. Mendoza was not originally schedule to work more than six consecutive days, but he did so after being asked to fill in for another employee. Gordon worked more than six consecutive days; however, on two of those days, she worked less than six hours.

Mendoza filed suit on behalf of a class of similarly situated hourly, non-exempt Nordstrom employees in California state court alleging that Nordstrom violated California Labor Code sections 551 and 552 by not providing him with one day's rest in seven work days. The relevant claim was brought pursuant to PAGA. See Cal. Lab. Code §§ 2698-2699.5. Nordstrom removed the action to federal court. Gordon intervened alleging the same causes of action as those in Mendoza's complaint.

The district court dismissed the PAGA action and the Ninth Circuit affirmed. The panel based its decision on responses to certified questions it presented to the California Supreme Court. Mendoza v. Nordstrom, Inc., 393 P.3d 375 (Cal. 2017). First, the Supreme Court held that "[a] day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited." Mendoza 393 P.3d at 377.
Second, it held that the exemption for employees applies when an employee does not exceed six hours of work during a workweek. If during a workweek the employee does work more than six hours, then a days of rest is required. Mendoza 393 P.3d at 377. Lastly, the California Supreme Court held that an employee may elect, independently, not to take their day of rest. Mendoza 393 P.3d at 377. The Ninth Circuit panel applied the responses to the facts and held neither Mendoza nor Gordon had a valid claim.

The Ninth Circuit also upheld the district court's decision not to permit the addition of new PAGA representatives who did suffer violations of the day of rest law and allow the litigation to continue. It held that even if the new plaintiffs were aggrieved employees, they would have to exhaust their claims administratively before bringing a PAGA action of their own. Moreover, the plaintiffs did not attempt to add other representatives, even after the district court asked them if they wished to do so well before trial. After noting that a PAGA suit is fundamentally different than a class action, the panel held the district court did not abuse its discretion in refusing to permit substitute or additional parties.

For these reasons, the Ninth Circuit panel affirmed the district court's decision dismissing the case.

To read the full opinion, please visit:

Panel: Susan P. Graber, Ronald M. Gould, and Consuelo M. Callahan, Circuit Judges.

Argument Date: December 12, 2014

Date of Opinion: August 3, 2017

Docket Numbers: No. 12-57130, No. 12-57144

Decided: Affirmed.

Counsel: André E. Jardini (argued) and K.L. Myles, Knapp Petersen & Clarke, Glendale, California, for Plaintiff-Appellant.

R. Craig Clark (argued) and James M. Treglio, Clark Law Firm, San Diego, California; David R. Markham, The Markham Law Firm, San Diego, California; for Plaintiff-Intervenor-Appellant.

Julie A. Dunne (argued), Dawn Fonseca, and Joshua D. Levine, Littler Mendelson P.C., San Diego, California, for Defendant-Appellee.

Author of Opinion: Judge Graber

Circuit: Ninth Circuit

Case Alert Author: Blaine Brown

Case Alert Supervisor: Professor Philip L. Merkel

    Posted By: Glenn Koppel @ 10/26/2017 12:04 PM     9th Circuit  

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