In California, in addition to the right to sue an employer, an employee also has the right to file a claim against their employer with the California Labor Commissioner.
Labor Commissioner Proceedings
THE LABOR COMMISSIONER CLAIM PROCESS
This wage claim resolution service is free to employees and starts when the employee files an online or in-person claim, along with supporting documentation, with the California Labor Commissioner’s office.
Following the receipt of the employee’s claim, a deputy from the Labor Commissioner’s office assists the employee throughout the entire process, first determining which Labor Code violations the employee has endured and then creating complex spreadsheets for the employee that calculate the back-due wages, penalties, and interest owed to the employee – all at no cost to the employee.
Thereafter, that same deputy becomes the “Hearing Officer” who presides over an administrative process that eventually resolves the employee’s claims. That administrative process starts with the employer receiving a “Notice of Claim and Conference” that notifies the employer of the employee’s claim as well as the date set by the Labor Commissioner for a settlement conference.
If the employer does not pay the full amount demanded at or before the settlement conference, the employee’s claim proceeds to an administrative hearing – with the same deputy now acting as the “judge” who hears evidence and issues a written, final ruling.
Given the way the system is set up, that final ruling almost always favors the employee. The employer must then either (a) pay the amount due to the employee, as determined by the Labor Commissioner in its final ruling, or (b) appeal the matter for a new trial, in front of a real Superior Court judge, within 15 days.
THE HEARING IS IMPORTANT
An employer must prioritize the administrative hearing. There are penalties imposed on an employer who loses at the administrative hearing and then chooses to appeal to the Superior Court.
- The first penalty is that the employer must post a bond with the Superior Court for the full amount owed; obviously, doing well at the hearing will reduce the amount owed by the employer, which in turn reduces the amount of the bond the employer has to post.
- The second penalty is that, once the employer appeals, the employee is free to (and usually does) add new claims to the lawsuit. What was once a claim only for wages and penalties suddenly morphs into a much larger case that includes new claims (PAGA, harassment, discrimination, retaliation, wrongful termination, unfair competition) and seeks new damages.
- The third penalty is that the employer must pay the employee’s attorneys’ fees unless the employer’s appeal is 100% successful and results in a judgment from the court granting the employee nothing. Any other judgment – even a judgement for just one penny in favor of the employee – results in the employer having to pay the employee’s attorneys’ fees.
WORKPLACE LEGAL'S ROLE
At Workplace Legal, our attorneys represent employers during the Labor Commissioner process. We attend the initial settlement conference to explain the employer’s defenses to the employee’s claims and, in addition, to correct any errors in the deputy’s calculation of damages alleged owed to the employee.
If the case does not resolve at that conference, we attend the formal hearing on behalf of the employer. We give opening/closing statements, introduce evidence, cross-examine the employee (and any witnesses brought by the employee), and obtain testimony from the employer (and all of its key witnesses).
Following the hearing, if our client believes that the process was not fair, or that the deputy Labor Commissioner’s ruling was wrong, we serve as appellate counsel for our client and appeal the matter to the Superior Court. Once in Superior Court and before a real judge, we litigate the matter strategically and aggressively, just as we would any other lawsuit.
