The FLSA exempts from overtime wage requirements an employee hired by an amusement or recreation establishment that operates for not more than 7 months a year and has revenues in one 6-month period per year that are at least 1/3 less than its revenues during the other 6 months. For purposes of this exemption, amusement or recreation refer to the employer’s principal revenue-generating activity, not the employee’s work duties. Here, the employer was a government entity organized for fair and exhibition purposes which qualify as amusement or recreational activities. Also, the employer which had several separate physical locations introduced sufficient evidence to raise a jury issue as to whether it was a single “establishment” for FLSA purposes by showing common management, accounting and human resources departments for all locations. The mere fact that an instruction quotes appellate authority does not make it an appropriate jury instruction. Labor Code 510 requires time and a half pay for work done in excess of 8 hours in a day or 40 hours in a week. Following IWC Wage Orders, however, this decision holds that this requirement does not apply to employees of a public entity. Nevertheless, the trial court erred in sustaining defendant’s demurrer to this claim without leave to amend since plaintiffs argued they could amend to state that they were joint employees at least on occasions when their employer—a public entity that administered a fairgrounds and exhibition space—rented its facilities for use by others for private events and lent its employees to help the organizers of those events carry them off. If also employed by the private event organizers, the employees would be entitled to overtime pay under Labor Code 510.
California Court of Appeal, Fourth District, Division 1 (Aaron, J.); July 13, 2016; Case No. D067247