How to file a claim with the Labor Commissioner?
The California Division of Labor Standards Enforcement (DLSE), also known as the Labor Commission, provides employees with a low-cost forum to adjudicate wage claims against their employer. There are Labor Commissioner offices throughout California.
Step 1: Figure out what you’re owed.
The first step is to figure out what you’re owed. You can find a nifty form here:
If you worked irregular hours you should use this form:
Here’s a sample:
Step 2. Ask your boss for what you’re owed.
It never hurts to ask. But, you should ask in writing (like an email you can print and keep a copy of). You want to ask in writing because: 1) it might make filing the claim unnecessary, and 2) it provides evidence you asked, and can be evidence of retaliation if you’re fired. The sooner you ask the better.
Step 3. File your claim.
You should find the Labor Commissioner’s office nearest to where you worked. For the nearest check out: www.dir.ca.gov/dlse/DistrictOffices.htm. The Labor Commissioner is staffed with folks who are trained in California wage and hour laws. They might be able to understand your claims better than a small claims judge. Plus, they are used to dealing employees who don’t have lawyers. However, you should probably let an experienced employment attorney evaluate your case. The Labor Commissioner handles the following types of cases:
–Piece rate wages
–Deductions from pay
–Reimbursement of expenses
–Severance pay (in some cases)
–Waiting time penalties
–Penalties for bounced checks
–Pay for not receiving breaks
–Pay for not receiving meal periods
–Liquidated damages (in garment worker cases only)
The Labor Commissioner might not handle your claim if you’re an independent contractor (although you may have been misclassified as an independent contractor instead of an employee), you’re a union member (with a collective bargaining agreement), you’re a government employee, or you’re undocumented.
You should make a move quick. You only have so long to make a claim for back wages and every day you wait, could be a day you miss out on collecting. Typically employees have:
–One to four years for waiting time penalties;
–Two years for a breach of an oral contract;
–Three years for minimum wage, overtime, meal and rest periods, illegal deductions, and unpaid reimbursements; and
–Four years for breach of a written contract.
You can submit an “Initial Report or Claim” form. It’s pretty simple. The important thing is to fill out the information honestly, with as much detail as possible. You should make a copy of the claim form and file it in the county, or the closest county, to which you worked, not the county you live in. You should ask the person behind the counter to date stamp your copy.
Step 4: The Conference.
After you file your claim, the Labor Commissioner sends a “Notice of Claim and Conference” to you and your employer. The conference is an opportunity for you and your employer, or your employer’s representative, to sit down and try to resolve your underlying wage claim. A Deputy Labor Commissioner will be assigned to your case. They will help facilitate the discussion. They will provide input. Before the conference, you should make sure you know all the important facts of your case. You should bring any evidence you have like paystubs, time records, contracts, etc. You should also think about who might be able to testify that you did the work, and didn’t get paid. You should make a list of those people before the conference.
Before the conference you should consider what your “bottom line” is. But, you should remember that new facts and evidence might come up that could affect your decision. If your case isn’t settled at the conference, the Labor Commissioner sets a hearing. The hearing is like a trial. If you don’t show up to the hearing, the Labor Commissioner will toss your case.
Step 5: The Hearing.
Like I said, the hearing is basically a trial. You should make an outline. Typically you must prove:
–You had a wage agreement, or law, requiring you to be paid a particular way;
–You did the work according to the agreement/law;
–You were not paid correctly according to the agreement/law; and
–The employer now owes you penalties for not paying in according to the law.
You should gather evidence. Get a copy of your personnel file. Get copies of your wage statements. Get copies of any employment policies, like employee handbooks. Get copies of any time records. Get copies of any paystubs. You should have three copies of each of these documents. You will want one for you, one for your hearing office, and one for your employer. If your employer has things that might help, but you don’t think they will bring them, ask the Labor Commissioner about issuing a subpoena.
Ask witnesses to come and testify on your behalf. They can testify that you worked. That you stopped by the office to pick stuff up. Things like that.
You should anticipate what your employer is going to say, and be prepared to overcome their arguments. For example, if your employer is going to say they had a policy saying you were provided your breaks, prove that the policy was bogus because the employer heaped work on all of you, effectively prohibiting you from taking breaks.
The hearing itself will be in a conference room. The hearing officer will sit at a table in the middle, facing the door. You will sit at a table in front of him or her, typically to the right. The employer will sit at a table across a walkway from you. The hearing officer will start by recording the hearing, swearing you in, and then asking some basic questions to see what you and your employer agree about. You must remember to testify truthfully, consistently, and with as much detail as possible. If you lie, you have committed perjury, which is a criminal offense.
After you testify, the employer will have the opportunity to “cross-examine” you, and ask you questions. You should try to answer only what they ask. The best answers are “Yes.”, which adopts all of what they said. “No.”, which means something was not accurate. “I don’t know.”, which means you don’t know the answer (don’t guess). “I don’t recall.”, which means you don’t remember. Think more like this: Youtube Video at 4:02 in the clip.
Next, your employer will have their opportunity to present their evidence. Be prepared to cross examine them. Less is probably more. Think of about 10 questions that will hurt their case and ask those.
Finally, you’ll have closing arguments. You get to go first. Then, the employer. Then, you get to rebut the employer.
The hearing officer will probably tell you when you can expect the “Order Decision or Award”. The ODA is supposed to come within 15 days of the hearing. But, hearing officers are busy.
You can learn more about the laws in the Labor Commissioner’s eyes here:
You can check the firm’s website for more information: www.californiaemploymentlawfirm.com/unpaid-wages. Of course, you should run your matter by an experienced employment attorney.
Experience Counts and the experienced and hard working team at McCarthy Law will put their experience to work for you!
Contact McCarthy Law Today!