SALISBURY v. KRINDLE (1980)

Following a trial de novo in the superior court after reversal of a decision of the Labor Commissioner awarding her $1026.38 for overtime pay earned as a legal secretary while employed by Daniel Jason Krindle, Sharon M. Salisbury was awarded judgment against Krindle in the sume of $373.16. She appeals from that judgment.

Contentions

It is contended that the court below erred in computing the overtime wages based upon a 40-hour week rather than on an 8-hour day or miscomputed the number of hours of overtime to be allowed.

Discussion

Division of Labor Standards Enforcement (Cal. Admin. Code, tit. 8, §11345 subd. 3(A)(1), Cal. Admin. Register 76, No. 41-B) provides in pertinent part: “(A) No employee eighteen (18) years of age or over shall be employed more than eight (8) hours in any one workday or more than forty (40) hours in any one workweek unless the employee receives one and one-half (11/212) times such employee's regular rate of pay for all hours worked over forty(40) hours in the workweek. Employment beyond eight (8) hours in any one workday or more than six (6) days in any one workweek is permissible provided the employee is compensated for such overtime at not less than: (1) One and one-half (11/212) times the employee's regular rate of pay for all hours worked in excess of eight (8) hours up to and including twelve (12) hours in any one workday, .” Put more simply, an employee, is entitled to overtime pay of one and one-half his regular rate of pay only after he has worked forty hours in the workweek. For example, an employee who works twelve hours on the first day of the workweek and does not work any more that week is entitled only to twelve hours of regular rate pay - not to eight hours regular rate and four hours at one and one-half times the regular rate. This is so even though he may have been paid for the balance of the week by reason of vacation, sick pay or holiday pay since the section specifically provides for the premium to be paid “for all hours worked over forty.” (Italics added.)

In the case at bench the trial court found Sharon was employed on a 40 hour per week basis and “upon examination of exhibits 1, 2, and 3, the computation of hours in excess of a 40 hour week in the period of 9-30-77 thru 1-31-78 is 18 1/212 hours at $7.78 per hour and equals $143.93 and the period from 2-1-78 thru 5-26-78 is 261/212 hours at $8.65 per hour and equals $229.23. The sums added together equal $373.16.” Sharon's first argument that “[t]he court computed overtime on the basis of a forty-hour (40) week without considering overtime based upon an eight (8) hour day,” lacks merit. As noted above, the section is clear that overtime does not begin to accrue until after the employee has worked 40 hours in the workweek.

However, we find some merit in the second argument that there is a miscalculation of the overtime even if computed on the 40 hour basis. Exhibit 1 summary sheets¹ disclose that while employed from September 30, 1977 through January 31, 1978, Sharon worked 75.5 hours of overtime. This would appear to be the only evidence in the record as to employment during this period and does not support the trial court's finding that Sharon was entitled to only 18-1/212 hours overtime. Exhibit 1 summary sheets further disclose that from February 4, 1978 through May 25, 1978, she worked 50.75 hours overtime. Exhibit 2 consisting of weekly payroll cards for this period signed by her and detailed to show daily employment do not bear out the 50.75 overtime hours figure computed by the Labor Commissioner nor the 26-1/212 hours determined by the trial court. Inasmuch as the weekly payroll cards reflect the employee's daily in and out times, we have accepted the opportunity to perform our own computation of overtime hours worked according to provisions of Administrative Code, title 8, section 11345, as follows:

Since our detailed examination of the exhibits fails to disclose evidentiary support for the trial court's findings and the judgment, we strike the findings of the lower court contained in the minute order of November 15, 1978, as to the number of hours of applicable overtime and substitute therefor a finding by this court of 75.5 hours at the rate of $7.78 per hour for the period September 30, 1977 to January 31, 1978, and of 39.25 hours at the rate of $8.65 per hour for the period February 1, 1978 to May 26, 1978. We also strike from the judgment the sum of $373.16 and substitute therefor the sum of $926.90. (Code Civ. Proc., §§43, 909.)

The judgment as modified is affirmed.

FOOTNOTES

1.  So called for want of a better designation. These sheets reveal only the number of hours worked in excess of 40 hours per week for both periods. There are no weekly payroll cards for the period September through January.C1Week EndingC2Overtime Hours2-3-788.252-10-783.252-17-789.782-24-780a3-3-78.253-10-784.753-18-782.253-24-783.753-31-782.504-7-78.50a4-14-780a4-21-784.04-28-7805-5-7805-12-7805-19-7805-26-780Total 39.25FNa. Although 8 hours compensation was paid for holidays and for sick pay, the hours do not count in computing overtime pay unless actually worked.

ALLPORT, Associate Justice:

COBEY, Acting Presiding Justice and POTTER, Justice, concurred.