Brief - Hernandez
v. Mendoza (1988)
199 Cal. App.3d 721
(1) If an employee is placed on salary, how many hours is
that to represent? Does it include overtime?
(2) If an employer did not keep track of the employees hours,
what is the standard for reconstructing a the hours worked?
(1) A fixed salary must be construed as payment for a regular
work week of 40 hours, since absent an explicit, mutual agreement,
a fixed salary does not serve to compensate an employee for
(2) When an employer fails its affirmative duty to recorded
hours worked, the employee may reconstruct hours worked by
a "just and reasonable" inference. The employer
then carries the burden to rebut the inference.
Hernandez brought an action to recover for uncompensated overtime
from his former employer Mendoza. The employer had agreed
to pay the employee a fixed salary per week, but there was
no agreement as to the number of hours or days per week that
the employee would work, or that the salary would include
remuneration for overtime. The testimony of the parties was
in conflict as to the number of hours and days that the employee
had worked, although both parties agreed that the employee
had worked in excess of 40 hours per week.
Hernandez introduced a calendar that he had filled out from
memory over a year later that purported to show the hours
and days worked. The employer introduced time cards that he
admittedly had falsified.
The Court of Appeal held that the fixed salary must be construed
as payment for a regular work week of 40 hours, since absent
an explicit, mutual agreement, a fixed salary does not serve
to compensate an employee for overtime.
Although the employee's evidence was imprecise as to the amount
of overtime he had worked, the consequences of the employer's
failure to keep accurate records as required by statute should
fall on the employer, not the employee.
Hernandez carried out his burden by proving that he had performed
work for which he was improperly compensated and by producing
sufficient evidence that showed the amount and extent of that
work as a matter of just and reasonable inference. The burden
then shifted to the employer to produce evidence either of
the precise amount of work or evidence to negate the reasonableness
of the inference to be drawn from the employee's evidence.
Since the employer could not produce accurate information,
the court's duty is to draw whatever reasonable inferences
it could from the employee's evidence.