CACI 2703 Nonpayment of Overtime Compensation—Proof of Overtime Hours Worked

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.


New September 2003; Revised June 2005, December 2005, November 2019


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Directions for Use

This instruction is intended for use when a nonexempt employee 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

Right of Action for Unpaid Overtime. Labor Code section 1194(a).

Employer Duty to Keep Payroll Records. Labor Code section 1174(d).

“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th 1072, 1079 [242 Cal.Rptr.3d 144].)

“[W]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages.” (Furry v. East Bay Publishing, LLC (2018) 30 Cal.App.5th 1072, 1079 [242 Cal.Rptr.3d 144].)

“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 the 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.)

“Once an employee shows that he performed work for which he was not paid, the fact of damage is certain; the only uncertainty is the amount of damage. [Citation.] In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act.” (Furry, supra, 30 Cal.App.5th at p. 1080, original italics.)

“That [plaintiff] had to draw his time estimates from memory was no basis to completely deny him relief.” (Furry, supra, 30 Cal.App.5th at p. 1081.)

“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.)

“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

Chin et al., California Practice Guide: Employment Litigation, Ch. 11-D, Payment of Wages, ¶  11:456 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-F, Payment of Overtime Compensation, ¶  11:955 (The Rutter Group)
Chin et al., California Practice Guide: Employment Litigation, Ch. 11-J, Enforcing California Laws Regulating Employee Compensation, ¶  11:1478.5 (The Rutter Group)
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, § 250.40 (Matthew Bender)