August 2, 2018
An employee doesn’t need to sue if he feels his employer owes him money. Instead, he can bring his case to the Labor Commissioner. The Labor Commissioner runs the Division of Labor Standards Enforcement (DLSE) in the Department of Industrial Relations. The DLSE has the power to inquire diligently into violations of the Labor Code, and, in some cases, will institute actions to enforce the provisions of the Labor Code and for the penalties provided. [Lab. Code § 217] For example, the DLSE takes the employee’s complaint, holds one or more hearings, and sometimes represents the employee in court — all free of charge to the employee.
An Employee or Former Employee Can Easily File a Wage Claim. All an employee needs to do is file an “Initial Report or Claim,” a document that can be downloaded directly from the Labor Commissioner’s website. Employees are urged to submit evidence, if they have it, such as copies of the employee’s time records (days and hours worked for the employer), paycheck stubs, any bounced checks, and any other important employment documents. These documents are not required, however, since it is ultimately the employer’s responsibility to keep accurate employee time and payroll records. Employees can file a claim with the Labor Commissioner regardless of their immigration status and interpreters are available if needed. After the claim is filed, both the employee and employer will receive a notice to go to a settlement conference at the Labor Commissioner’s Office. At the conference, they will meet with a Deputy together. The Deputy is a neutral moderator who typically will discuss the employee’s claim and explore whether a violation exists. The purpose of this settlement conference is to explore settlement options without having to go to a hearing.
Employers Often Find a Hostile Forum Before the Labor Commissioner. That part of the Labor Code which gives the Labor Commissioner his authority may be weighted in favor of the employee. For example, many employers don’t realize that failing to pay an employee on his regular payday can be a crime, and that the Labor Commissioner has the power to enforce it. [Lab. Code § 215] California has determined that the prompt payment of wages is a fundamental public policy, and that employees who feel they have not been fully paid must have an easy, inexpensive route to obtain their full wages. It is not surprising, then, that some employers who appear before the Labor Commissioner do not feel treated fairly.
Losing Before the Labor Commissioner can be Expensive for the Employer. The Labor Commissioner has the authority to hear a case similar to the authority of a judge. [Lab. Code §§ 98(a) and 98.2(a).] The cases are heard by a Deputy Labor Commissioner, who can hear arguments from both sides and accept any evidence he wishes to. All parties are under oath during these proceedings. The Labor Commissioner’s ruling has the force of law, and is enforceable in the Superior Court. [Lab. Code §§ 98(a), 98.1(a), 98.2(d).]
The Labor Code is replete with penalties against an employer which the Labor Commissioner can assess. For example, if the Labor Commissioner believes an employer wilfully failed to pay a terminated employee everything owed on that employee’s last day, the employer can be assessed up to a month’s wages as a penalty! [Labor Code § 203.]
The problem for employers is this: if the Deputy Labor Commissioner gives the employee an award, and the employer wishes to appeal to the Superior Court, the employer must pay the employee’s attorneys’ fees if the employer loses! [Lab. Code § 98.2(a).] In a case like this, to avoid having to pay the employee’s attorneys’ fees, the employee must receive nothing from the Superior Court. In other words, the Deputy Labor Commissioner’s ruling must be completely reversed for the employer to avoid paying the employee’s attorney’s fees.
Employers Need to Get Help Early. An employer who has been summoned by the Labor Commissioner needs to realize that the cards are stacked against him. It is important to turn the tables and to win at the Labor Commissioner’s hearing, or at least to minimize the award to the employee.
This can be difficult, but it is not impossible. Many employees don’t use attorneys at these hearings, even though they are entitled to do so. Employers, on the other hand, should seek legal counsel early. This can be relatively inexpensive, since a Labor Commissioner hearing is relatively quick, and does not involve discovery such as one would encounter in a civil lawsuit. Above all, bear in mind that an early victory at a Labor Commissioner hearing can avoid the risk of having to pay costly attorneys’ fees later.
Need more information?
ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (geskridge@eskridgelaw.net). Please visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.