CACI 2702 Nonpayment of Overtime Compensation—Essential Factual Elements (Lab. Code, § 1194)

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/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

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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, Affirmative Defense—Nonpayment of Overtime—Executive Exemption, and CACI No. 2721, Affirmative Defense—Nonpayment of Overtime—Administrative Exemption.

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.” (Ramirezsupra, 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 … .” (Jongsupra, 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.” (Ramirezsupra, 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.)

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 Bender)
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)