Written by Galen T. Shimoda and Jennet F. Zapata
An employee who claims unpaid wages may file a wage claim with the Division of Labor Standards Enforcement (DLSE), which is headed by the Labor Commissioner. The Labor Commissioner's office, as it is commonly known, resolves claims for wages, penalties, and other forms of compensation. In this short article, we will explain what to expect when an employee files a claim with the Labor Commissioner's office, especially during a settlement conference or a hearing.
An employee or Claimant alleging the nonpayment of wages starts the claim process by filing the Initial Report or Claim ("Claim") at the local DLSE office. This one-page form requires an employee to provide information relating to the basis of the claim (e.g., amount of unpaid overtime wages, rest breaks, etc.) It is important to provide information that the DLSE needs to understand why wages are owed and for what period of time. A claimant may mail the Claim or drop it off at the local DLSE office.
After filing the Initial Report or Claim, an employee will receive notice of the case number and the name of the Deputy Labor Commissioner ("Deputy") who will process the claim. Generally, the DLSE will send notice to the parties within 30 days of the filing of the Claim, but it may take longer. The Deputy may contact the employee to discuss the issues in the claim, but in practice, this does not occur very often. A lot of the fact finding occurs during the settlement conference, as explained further below.
Once the Claim is filed, the Labor Commissioner will send a Notice of Claim and Conference to the employer and employee (which can sometime take up to six (6) months). This notice informs the employer that a wage claim has been filed, describes the issues presented and the damages sought, and sets a date for an informal settlement conference. The conference generally takes place in the Deputy's office, with both parties sitting across from the Deputy. At the conference, the parties present their evidence. The employee or Claimant has to explain the basis of his or her claim, and the employer has an opportunity to respond to the allegations. Any party may bring documents, pictures, or witnesses to support his or her claim or defense. Often, employers will bring other employees, including supervisors, as part of their defense. The Deputy will be involved in the discussion and attempt to determine the merits of the claim. The Deputy will likely discuss the strengths and weaknesses of the case and encourage the parties to resolve the matter.
If the parties do not reach an agreement at the informal settlement conference, the claim will be set for a hearing (also known as a Berman hearing). The Deputy prepares an administrative complaint, which is signed by the claimant and served on the employer, along with a Notice of Hearing and a blank Answer. Within 10 days after service of the Complaint, the Notice of Hearing and the blank Answer, the employer may respond to the Complaint by filing an Answer. In the Answer, the employer can state the reasons why the claim is not accurate or incomplete. No formal discovery is conducted. However, either party may request the Deputy to issue a subpoena to compel the attendance of parties, witnesses, or to request the production of documents at the hearing. The Deputy may issue, modify or refuse to issue a subpoena, depending on the case.
During the hearing, the Deputy will follow certain procedures and a record will be created. The parties and witnesses are sworn in and give testimony under oath. The proceedings are recorded phonographically. Almost any relevant evidence is admitted. This is a very broad standard. The parties may call and examine witnesses, introduce documents or exhibits, or may cross-examine opposing witnesses and rebut evidence.
If an employer does not file an Answer or does not appear at the hearing, the Deputy will hear the evidence from the employee and render an Order, Decision or Award (often referred to as an ODA) based on the evidence presented.
Within 15 days after the hearing concludes, the Deputy will file and serve a copy of the ODA on all parties. The ODA will include a summary of the hearing, the reasons for the decision and provide notice regarding the parties' right to appeal and the consequences if the ODA is not appealed. If no appeal is filed, the ODA will become final and enforceable as a judgment in superior court.
Within 10 days of service of an ODA, either party may appeal to the superior court. A party may waive its right to appeal if it does not do so within the time provided, unless fraud can be proven or there are other specific reasons for the delay recognized under the law. At the superior court proceedings, the decision of the Deputy is entitled to no weight whatsoever. The case will be treated as a new case (or de novo). It is important to consult an attorney before filing an appeal. There are several risks and considerations that should be taken into account.