Appeal from a judgment of the Superior Court of Orange County, Charles Margines, Judge. Reversed and remanded. (Super. Ct. No. 07CC08256).
The opinion of the court was delivered by: Sills, P. J.
CERTIFIED FOR PUBLICATION
Manuel Barbosa appeals from the adverse judgment on his complaint for wrongful termination after the superior court granted the motion for non-suit by defendant IMPCO Technologies. He contends the trial court improperly found there was no public policy protecting a mistaken but good faith claim to overtime wages. We agree. The public policy in favor of the employer's duty to pay overtime wages protects an employee from termination for making a good faith but mistaken claim to overtime. The case must be reversed and remanded for a jury determination of the questions of Barbosa's good faith and IMPCO's reason for his termination.
Barbosa started working at IMPCO as a carburetor assembler. At the time of his termination, in June 2007, he worked as a "cell leader" supervising up to eight other carburetor assemblers. He was paid by the hour; sometimes he and the other employees worked overtime.
Barbosa testified that in June 2007, two of the employees in his cell told him they were missing two hours of overtime. After he talked with them, he thought he also was missing two hours of overtime, "[b]ecause some employees coming to me, and they told me they're missing two hour overtime starting Tuesday, [May 29]." The payroll administrator testified Barbosa came to her department on June 8 and told her that "he worked overtime, and four or five of his other employees also worked overtime, and he believe[d] that clock was wrong, and that's maybe the reason they did not get paid overtime." The payroll administrator looked at the time card report and saw that it did not reflect any unpaid overtime. She told Barbosa, "No one has complained about the time clock being wrong. So please make a copy, go to the supervisor, and tell him to approve the overtime."
Barbosa spoke to his supervisor, Jaime DeSantos, and told him he and the other employees in his cell were each missing two hours of overtime. DeSantos said he would approve the missing hours because he "just trusted [Barbosa's] call at that time." The payroll administrator got DeSantos's verbal approval and paid all the employees in Barbosa's cell for two extra hours of overtime.
The payroll administrator thought "something doesn't make sense" because "no one complained about the time clock" and "we never had [a] problem." The company had had occasional problems with a prior time clock system, but a new system was installed at the beginning of May and it had been working correctly with no complaints. So the payroll administrator spoke to the human resources manager, who ran the report from the scans at the security entrance gate and compared that report with the time card report. The gate report showed Barbosa and the others could not have worked the overtime that Barbosa claimed.
One of the employees in Barbosa's cell, Bertha Sattarzadegan, testified Barbosa came to her and said that two other employees in their cell claimed they worked overtime on May 29 and 30. Barbosa told her to review her check to make sure the hours were correct. They had all worked the same hours, and Sattarzadegan did not think they had worked extra overtime. She went to the human resources manager and told her she should not be paid for the extra overtime because she had not worked those hours.
On June 13, Barbosa was called to a meeting with DeSantos, the payroll administrator, the human resources manager, and the operations manager, Arshad Atlaf. Atlaf asked Barbosa if he was sure he and his cell worked overtime as he claimed; Barbosa said yes. Fifteen minutes later, Atlaf met with Barbosa again and showed him the gate report. Barbosa then said, "Well, I confuse. And sorry, you know, it's for the people coming to me and told me that I confuse."
When Barbosa got the paycheck that included the extra overtime, he went to the payroll department and offered to pay the money back. The payroll administrator told him she could not change anything and sent him to human resources, where he again offered to pay the money back. Barbosa was terminated on June 19, 2007. He testified Atlaf told him he was terminated for cheating the company. The payroll administrator testified Barbosa was terminated for falsifying time records. None of the other employees in Barbosa's cell was terminated; the overtime money was "eventually taken back" from them.
After Barbosa rested, IMPCO moved for non-suit. The trial court initially denied the motion, finding there was a public policy that protected an employee from making a good faith claim for time he believed he had worked. IMPCO then called the human resources manager, who had previously been called on behalf of Barbosa, and she testified in more detail about the first meeting Barbosa had with her, the payroll administrator, DeSantos, and Atlaf. She testified that Atlaf asked Barbosa, "[I]f we have evidence to show that you didn't work the overtime, are you still claiming that you worked the overtime?" Barbosa said yes, without any doubt or hesitancy. Altaf then reminded Barbosa "that the company does not tolerate any stealing from the company. And claiming you worked overtime when you didn't is stealing from the company." Altaf asked again, "Are you sure you worked the overtime?" Barbosa responded yes. After the human resources manager completed her testimony, the court recessed for the weekend.
On Monday morning, the court told counsel it had "strong second thoughts" about its ruling on the non-suit motion. After extensive discussion with counsel, the court changed its mind and granted the non-suit. "I will accept plaintiff's version. It still comes down to a question of law. Good faith belief turns out to be wrong; termination thereafter of an at-will employee." The court continued, "We know the employer promptly paid the claim, thereafter, did an investigation, found out [Barbosa] was wrong. [¶] I don't see that there's a public policy that requires the employer to then make a determination whether this was ...