One exception to the requirement of paying overtime pay after 8 hours work in a day is to have two-thirds of workers in the affected unit approve an alternative workweek schedule (AWS) of fewer days, but longer hours. To be effective, such an election must be by secret ballot before the AWS is implemented. As an AWS is an exception to the normal requirement of overtime pay, the employer bears the burden of proving that the AWS was approved in the manner specified in the IWC’s Work Order. Here, the employer failed to meet that burden. However, it is the employee’s burden to prove damages—that is, the number of uncompensated hours worked for which overtime compensation should have been paid. Here, plaintiff did not meet that burden as to the half-hour allowed for a meal break during the day. The employer need not pay compensation for that half hour. Plaintiff’s expert’s testimony that the employer’s clock rounding system resulted in non-payment of an equivalent half hour was not credible because it relied on a non-random sample and flawed logic. Substantial evidence supported the trial court’s finding that the employer failed to prove its good faith “defense” to a claim for waiting time penalties under Lab. Code 203. The employer did not pay overtime pay. Its subjective belief that its alternative workweek schedule (AWS) was properly approved and created an exception to the normal requirement of paying for overtime was not reasonable in light of the employer’s lack of evidence that the AWS had been approved in the manner required by IWC Work Orders. The trial court improperly awarded damages to workers based on the claim that their employer violated Lab. Code 226 by giving them non-compliant pay statements. The pay statement correctly listed hours worked and rates of pay that the employer thought applicable to those hours. However, because the employer had not obtained proper consent to an alternative workweek schedule, some of the hours worked should have been paid at higher overtime rates. This decision holds that a pay statement that correctly reflects hourly rates that the employer thinks are applicable complies with Lab. Code 226 even if it is later shown that a different hourly rate should have been applied.
California Court of Appeal, Second District, Division 8 (Rubin, J.); April 18, 2018 (published May 8, 2018); 2018 Cal. App. LEXIS 413