California Civil Jury Instructions (CACI) (2017)
2702. Nonpayment of Overtime Compensation - Essential Factual Elements (Lab. Code, § 1194)Download PDF
2702.Nonpayment of Overtime Compensation—Essential Factual
Elements (Lab. Code, § 1194)
[Name of plaintiff] claims that [name of defendant] owes [him/her]
overtime pay as required by state law. To establish this claim, [name of
plaintiff] must prove all of the following:
1. That [name of plaintiff] performed work for [name of defendant];
2. That [name of plaintiff] worked overtime hours;
3. That [name of defendant] knew or should have known that [name
of plaintiff] had worked overtime hours;
4. That [name of plaintiff] was [not paid/paid less than the overtime
rate] for some or all of the overtime hours worked; and
5. The amount of overtime pay owed.
Overtime hours are the hours worked longer than [insert applicable
deﬁnition(s) of overtime hours].
Overtime pay is [insert applicable formula].
An employee is entitled to be paid the legal overtime pay rate even if he
or she agrees to work for a lower rate.
New September 2003; Revised June 2005, June 2014, June 2015
Directions for Use
The court must determine the overtime compensation rate under applicable state or
federal law. (See, e.g., Lab. Code, §§ 1173, 1182; Cal. Code Regs., tit. 8, § 11000,
subd. 2, § 11010, subd. 4(A), and § 11150, subd. 4(A).) The jury must be instructed
accordingly. It is possible that the overtime rate will be different over different
periods of time.
Wage and hour claims are governed by two sources of authority: the provisions of
the Labor Code, and a series of 18 wage orders adopted by the Industrial Welfare
Commission. (See Mendiola v. CPS Security Solutions, Inc. (2014) 60 Cal.4th 833,
838 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Both the Labor Code and the IWC wage
orders provide for certain exemptions from overtime laws. (See, e.g., Lab. Code,
§ 1171 [outside salespersons are exempt from overtime requirements]). The
assertion of an employee’s exemption is an affirmative defense, which presents a
mixed question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th
785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) For instructions on exemptions, see
CACI No. 2720, Affırmative Defense—Nonpayment of Overtime—Executive
Exemption, and CACI No. 2721, Affırmative Defense—Nonpayment of
Sources and Authority
• Employee Right to Recover Minimum Wage or Overtime Compensation. Labor
Code section 1194(a).
• Recovery of Liquidated Damages. Labor Code section 1194.2.
• “Wages” Deﬁned. Labor Code section 200.
• Payment of Uncontested Wages Required. Labor Code section 206(a).
• What Hours Worked Are Overtime. Labor Code section 510.
• Rate of Compensation. Labor Code section 515(d).
• Action by Department to Recover Unpaid Minimum Wage or Overtime
Compensation. Labor Code section 1193.6(a).
• “[T]he assertion of an exemption from the overtime laws is considered to be an
affirmative defense, and therefore the employer bears the burden of proving the
employee’s exemption.” (Ramirez,supra, 20 Cal.4th at pp. 794–795.)
• “[W]here an employer has no knowledge that an employee is engaging in
overtime work and that employee fails to notify the employer or deliberately
prevents the employer from acquiring knowledge of the overtime work, the
employer’s failure to pay for the overtime hours is not a violation . . . .” (Jong
v. Kaiser Foundation Health Plan, Inc. (2014) 226 Cal.App.4th 391, 395 [171
Cal.Rptr.3d 874] [applying rule under federal Fair Labor Standards Act to
claims under California Labor Code].)
• “[A]n employer’s actual or constructive knowledge of the hours its employees
work is an issue of fact . . . .” (Jong,supra, 226 Cal.App.4th at p. 399.)
• “The question whether [plaintiff] was an outside salesperson within the meaning
of applicable statutes and regulations is . . . a mixed question of law and fact.”
(Ramirez,supra, 20 Cal.4th at p. 794.)
• “The FLSA [federal Fair Labor Standards Act] requires overtime pay only if an
employee works more than 40 hours per week, regardless of the number of
hours worked during any one day. California law, codiﬁed at Labor Code
section 510, is more stringent and requires overtime compensation for ‘[a]ny
work in excess of eight hours in one workday and any work in excess of 40
hours in any one workweek.’ ” (Flowers v. Los Angeles County Metropolitan
Transportation Authority (2015) 243 Cal.App.4th 66, 83 [196 Cal.Rptr.3d 352],
internal citation omitted.)
3 Witkin, Summary of California Law (10th ed. 2005) Agency and Employment,
§§ 382–384, 398, 399
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment
Of Wages, ¶¶ 11:456, 11:470.1, 11:499 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment
Of Overtime Compensation, ¶¶ 11:730, 11:955.2 (The Rutter Group)
CACI No. 2702 LABOR CODE ACTIONS
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
1 Wilcox, California Employment Law, Ch. 3, Overtime Compensation and
Regulation of Hours Worked, §§ 3.03, 3.04, 3.07, 3.08, 3.09; Ch. 5,
Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72
21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage
and Hour Disputes, § 250.40 (Matthew Bender)
California Civil Practice: Employment Litigation, §§ 4:67, 4:76 (Thomson Reuters)
LABOR CODE ACTIONS CACI No. 2702