California Civil Jury Instructions (CACI)

2703. Nonpayment of Overtime Compensation - Proof of Overtime Hours Worked

State law requires California employers to keep payroll records showing the hours worked by and wages paid to employees.

If [name of defendant] did not keep accurate records of the hours worked by [name of plaintiff], then [name of plaintiff] may prove the number of overtime hours worked by making a reasonable estimate of those hours.

In determining the amount of overtime hours worked, you may consider [name of plaintiff]'s estimate of the number of overtime hours worked and any evidence presented by [name of defendant] that [name of plaintiff]'s estimate is unreasonable.

Directions for Use

This instruction is intended for use when the plaintiff is unable to provide evidence of the precise number of hours worked because of the employer's failure to keep accurate payroll records. (See Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727-728 [245 Cal.Rptr. 36].)

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 overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this . . . overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit."

"Although the employee has the burden of proving that he performed work for which he was not compensated, public policy prohibits making that burden an impossible hurdle for the employee. . . . 'In such situation . . . an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative he reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.' " (Hernandez, supra, 199 Cal.App.3d at p. 727, internal citation omitted.)

"It is the trier of fact's duty to draw whatever reasonable inferences it can from the employee's evidence where the employer cannot provide accurate information." (Hernandez, supra, 199 Cal.App.3d at p. 728, internal citation omitted.)

Labor Code section 1174(d) provides: "Every person employing labor in this state shall . . . [k]eep . . . payroll records showing the hours worked daily by and the wages paid to, and the number of piece-rate units earned by and any applicable piece rate paid to, employees employed at the respective plants or establishments. These records shall be kept in accordance with rules established for this purpose by the commission, but in any case shall be kept on file for not less than two years."

"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 week, . . . appellant incurred damages of uncompensated overtime." (Hernandez, supra, 199 Cal.App.3d at pp. 725-726, internal citations omitted.)

Secondary Sources

1 Wilcox, California Employment Law, Ch. 5, Administrative and Judicial Remedies Under Wage and Hour Laws, § 5.72[1] (Matthew Bender)

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

(Revised December 2005)