California Civil Jury Instructions (CACI)

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 plaintiff] was [not paid/paid less than the overtime rate] for some or all of the overtime hours worked; and

4. 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.

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.

The assertion of an employee's exemption from overtime laws is an affirmative defense. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794 [85 Cal.Rptr.2d 844, 978 P.2d 2].) For example, outside salespersons are exempt from overtime requirements (see Lab. Code, § 1171). An employee's exemption from overtime laws presents a mixed question of law and fact. (Id.) Because of the case-specific nature of exemptions to overtime laws, the advisory committee has chosen not to write model instructions for these affirmative defenses.

Sources and Authority

Labor Code section 1194(a) provides: "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit."

Labor Code section 1194.2 provides, in part: (a) In any action under . . . Section 1194 to recover wages because of the payment of a wage less than the minimum wage, . . . an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon. Nothing in this subdivision shall be construed to authorize the recovery of liquidated damages for failure to pay overtime compensation.

(b) Notwithstanding subdivision (a), if the employer demonstrates to the satisfaction of the court that the act or omission giving rise to the action was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of any provision of the Labor Code relating to minimum wage, or an order of the commission, the court may, in its discretion, refuse to award liquidated damages or award any amount of liquidated damages not exceeding the amount specified in subdivision (a).

Labor Code section 200 defines "wages" as including "all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. . . .[¶] 'Labor' includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment."

"Absent an explicit, mutual wage agreement, a fixed salary does not serve to compensate an employee for the number of hours worked under statutory overtime requirements. . . .[¶] Since there was no evidence of a wage agreement between the parties that appellant's . . . per week compensation represented the payment of minimum wage or included remuneration for hours worked in excess of 40 hours per eek, . . . appellant incurred damages of uncompensated overtime. . . ." (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 725-726 [245 Cal.Rptr. 36].)

"[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 v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795 [85 Cal.Rptr.2d 844, 978 P.2d 2].)

"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.)

Labor Code section 206(a) provides: "In case of a dispute over wages, the employer shall pay, without condition and within the time set by this article, all wages, or parts thereof, conceded by him to be due, leaving to the employee all remedies he might otherwise be entitled to as to any balance claimed."

Labor Code section 1193.6(a) provides, in part: "The department or division may, with or without the consent of the employee or employees affected, commence and prosecute a civil action to recover unpaid minimum wages or unpaid overtime compensation. . . . The consent of any employee to the bringing of this action shall constitute a waiver on the part of the employee of his or her cause of action under Section 1194 unless the action is dismissed without prejudice by the department or the division."

Secondary Sources

2 Witkin, Summary of California Law (9th ed. 1987) Agency and Employment, §§ 330, 335, pp. 321-322, 327-329; id. (2002 supp.) at §§ 330, 335, pp. 325-327, 341-343

1 Wilcox, California Employment Law, Ch. 3, Overtime Compensation and Regulation of Hours Worked, §§ 3.03[1], 3.04[1], 3.07[1], 3.08[1], 3.09[1]; Ch. 5, Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72 (Matthew Bender)

21 California Forms of Pleading and Practice, Ch. 250, Employment Law: Wage and Hour Disputes (Matthew Bender)

Bancroft-Whitney's California Civil Practice: Employment Litigation (1993) Wage and Hour, §§ 4:67, 4:77, pp. 51, 56

(Revised June 2005)