In California, A Day Of Rest Is Not Just Religious Practice…It’s Law
by Jed Bergman
As a busy lawyer and a committed Jew, I often feel like my life exists in two different time frames. Six days a week, I advocate zealously for my clients in the courts; on the seventh day, Shabbat, I rest, and can spend more time exploring my own traditions. I love both parts of what I do. Representing my clients in high-stakes business litigation is challenging, intellectually stimulating, and can be tremendously rewarding. But having one day “off” every week is a true gift. It allows me to unplug, recharge, spend time with my family, turn my attention away from the mundane, and then start the next week with renewed energy. Frankly, I’m a better lawyer in my six-day workweek than I would be if I worked every single day.
For me, this balance would not be possible without a sense of obligation. If I didn’t feel commanded to observe Shabbat, I can easily imagine my day of rest being overwhelmed, bit-by-bit, by client demands, the press of upcoming deadlines, and the usual assortment of social media and online distractions. And sometimes, I want those distractions! There are plenty of weeks where I could use an extra day to get my work done, and other times when I’d like nothing more than to spend my Saturday afternoon binge-watching the latest series on Netflix. But I don’t – no matter how important the work, or how exciting the show – because that’s not how I observe Shabbat.
As I see it, the Torah’s commandment to rest on the seventh day, though framed as an obligation, actually gives us an incredible opportunity. By requiring its adherents to refrain from creative labor every seventh day, the Torah helps us maintain what we otherwise might not: a regular, consistent, and unshakeable commitment to step outside our immediate requirements and desires, to a deeper level of engagement and satisfaction. It’s not always easy to observe that commitment, but I’m always grateful for it.
I’ve often wondered how we might translate this obligation/opportunity to the modern, secular world. How does a modern economy — with its interconnected economy, 24/7 news cycle, pervasive social media, and “always available” work ethic — allow all of its members a day of rest? And second, how do we grapple with the fact that for many, the “obligation” no longer feels divinely ordained; how do we create a sense of obligation without the fear of heavenly retribution? I found some surprising and constructive insights into these questions in my “weekday” life, via a recent decision by the California Supreme Court.
The case, Mendoza v. Nordstrom, involved a dispute between the high-end retailer and two former employees. The court was asked to interpret a California law, originally inspired by the Sabbath, which provides that “[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.”
Two aspects of the Court’s ruling are relevant here. First, the court was asked to decide if the seven-day period was fixed, or floating; in other words, are employers covered by the statute required to provide each covered employee with a day of rest every seventh day, or just one day in every seven? The difference is that under the second interpretation, a worker could have a day of rest on Day 1, then work twelve days straight, then have a day of rest on Day 14.
The Bible, of course, adopts the first approach: “Six days you shall work, and you shall do your tasks, but the seventh day is a sabbath to the LORD your God.” That is why the Abrahamic traditions provide for a day of rest on the same day, every week: Friday for Muslims, Saturday for Jews, and Sunday for Christians.
The California court adopted the second interpretation, permitting any day in a seven-day period to serve as the day of rest. That approach allows for greater flexibility, while still preserving the basic statutory requirement. And though its ruling theoretically permitted 12 workdays in a row without rest, the court attached an important caveat: “If at any one time an employee works every day of a given week, at another time shortly before or after she must be permitted multiple days of rest in a week to compensate, and on balance must average no less than one day’s rest for every seven, not one for every 12.”
In this way, the court wisely recognized that, even though a modern economy may not be able to shut down completely one day a week (let alone track when each and every employee is entitled to her own “seventh day”), employees are still entitled, on average, to one day of rest per week. The Torah’s core insight is as true in Silicon Valley as it was in the Jordan Valley.
The court’s ruling also sheds light on the question of obligation. The statute states that an employer may not “cause his employees to work more than six days in seven,” and provides for civil and even criminal liability against employers who do so. The employees argued that under this provision, an employer may not even allow an employee to work a seventh day. In other words, the employees wanted a day of rest to be obligatory. By contrast, Nordstrom argued that an employer was only prohibited from requiring a seventh day of work – a less restrictive rule that leaves more room for employer pressure, but also more flexibility for employee choice.
On this issue, the California court chose a middle ground. It rejected the employees’ argument, because the verb “to cause” means more than just “to allow” – some form of action by the employer was required. At the same time, the court recognized the pitfalls in Nordstrom’s argument: “One can envision a host of ways in which an employer can, short of requiring or forcing employees to go without rest, still implicitly make clear that doing so will redound to their benefit, or spare them sanction, and thereby motivate or induce employees to work every day.”
To avoid those risks, the court ruled that an employer is required to notify its employees of the right to a day of rest, and then “maintain absolute neutrality as to the exercise of that right.” By drawing that balance, the court rightly recognized how easy it would be for an employer to influence employees to work on their day of rest – and how important it is to safeguard the Sabbath (or at least, “a Sabbath”) against outside pressures.
A final thought: it’s easy to object that the California statute is not in any way a religious law. That’s true, and the court itself recognized that, while earlier versions of the law had been challenged on First Amendment grounds, the current statute is secular in its language and purpose. But, on a deeper level, that’s exactly the point! The idea of the Sabbath may have come from a religious source, but its message and importance transcend its origins. We can all benefit from a day of rest. And, even on a secular level, we can all benefit from rules that limit societal pressures to skip that day of rest. The bottom line remains the same: in California, at least, one day of rest per week is not just a good idea, it’s the law.
January 30, 2019
January 15, 2019