CACI No. 2702. Nonpayment of Overtime Compensation - Essential Factual Elements (Lab. Code, § 1194)

Judicial Council of California Civil Jury Instructions (2023 edition)

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2702.Nonpayment of Overtime Compensation - Essential Factual
Elements (Lab. Code, § 1194)
[Name of plaintiff] claims that [name of defendant] owes
[him/her/nonbinary pronoun] 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 the
employee agrees to work for a lower rate.
New September 2003; Revised June 2005, June 2014, June 2015, May 2020,
November 2021
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).) If an employee earns a flat
sum bonus during a pay period, under state law the overtime pay rate is calculated
using the actual number of nonovertime hours worked by the employee during the
pay period. (Alvarado v. Dart Container Corp. of California (2018) 4 Cal.5th 542,
573 [229 Cal.Rptr.3d 347, 411 P.3d 528].) The jury must be instructed on the
applicable overtime pay formula. 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 Overtime - Administrative
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
employers 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 employers 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
“We conclude that the flat sum bonus at issue here should be factored into an
employee’s regular rate of pay by dividing the amount of the bonus by the total
number of nonovertime hours actually worked during the relevant pay period
and using 1.5, not 0.5, as the multiplier for determining the employee’s overtime
pay rate.” (Alvarado, supra, 4 Cal.5th at p. 573.)
Secondary Sources
3 Witkin, Summary of California Law (11th ed. 2017) Agency and Employment,
§§ 417, 420, 421, 437, 438, 439
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment
Of Wages, ¶¶ 11:456, 11:470.1 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment Of
Overtime Compensation, ¶¶ 11:730, 11:955 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing
California Laws Regulating Employee Compensation, ¶¶ 11:1342, 11:1478.5 (The
Rutter Group)
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
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)

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