(Helen Marsh | Special to The Sun) — The California Labor Board is an employee-friendly state agency where individuals can file claims against current or former employers for failure to pay all wages due. Employees most often file claims similar to those listed in the attached chart.
The Labor Board (officially known as the Division of Labor Standards Enforcement or DLSE) office in Santa Rosa handles claims arising from employment in Sonoma, Napa and Mendocino counties. Many individuals file claims with the Labor Board without an attorney. Counter staff at the Santa Rosa office will answer questions and provide sample claim forms for individuals unfamiliar with the process.
Typically, these claims are relatively small, often amounting to only a few hundred dollars. Other employees may have substantial claims of $10,000 or more, and are usually represented by attorneys who handle the cases on a contingent fee basis. All of these claims proceed along the same path to resolution, although, of course, the involvement of attorneys on either side will generally result in a lengthier proceeding.
After the initial claim is filed, the Labor Board will notify both the employer and the employee of a date for a conciliation conference. A deputy labor commissioner will meet with both parties and ask each a series of question of both the employer and the employee in order to determine if there is enough evidence to allow each aspect of the employee’s claim to proceed to an evidentiary hearing.
In addition, at the conciliation conference, the deputy will determine if there is any interest in resolving the claim at this early stage, and if so, the parties will generally exchange offers and demands outside the presence of the deputy. If a settlement is reached, the parties sign the papers at that time, and payment is due in fifteen days unless other terms are agreed upon.
If no settlement is reached, the deputy will ask the employee to sign a complaint which will then be set for an evidentiary hearing in front of a neutral hearing officer. These hearings are informal, and for a simple case, the hearing may last less than an hour. Even in more complex cases, it is unusual for the parties to call (or be allowed to call) more than one or two witnesses, and only rarely will a case take as long as two days for the hearing.
If a claim proceeds to a decision, then a successful employee will be entitled to payment within fifteen days. If an employer fails to make such payment, the Labor Board will obtain a judgment in the appropriate superior court against that employer. Many such judgments are never collected, particularly those against small employers, individuals, or insolvent companies. While an unsuccessful party has a right of appeal to superior court, there are disincentives to pursue such appeals, and they are uncommon.
Employers, with some justification, see the Labor Board as a pro-employee forum. In addition, there is a “piling on” effect arising from even a relatively simple claim. Take, for example, a situation in which an employer is alleged to have failed to provide a timely, duty free, uninterrupted meal period to an employee who works a typical eight-hour day. Assuming that the employee can meet the appropriate legal standards, he or she would be entitled to a meal period premium of one hour’s pay for each missed, short or late meal period. In addition, if that employee worked eight-and-a-half hours due to working through lunch, he or she would be owed one-half hour of overtime. Finally, that employee might be entitled to waiting time penalties of thirty days’ pay, as well as interest at ten percent, accruing from the time the wages were due.
The most experienced employment attorneys urge their employer clients to resolve legitimate claims early and without a hearing. If a claim is settled outside of the Labor Board process, the typical settlement agreement will include a confidentiality clause. This can prevent or minimize “copycat” claims from other former employees.
Finally, an employer’s best defense against these claims is a lawful, well publicized and enforced set of policies that will minimize the risk that former employees will file the most common types of claims. Because California’s labor laws change with some regularity, it may be cost-effective even for employers with a small number of employees to review their payroll and employment practices with an employment attorney on a periodic basis.
|Type of claim||Related damages claim|
|Misclassification as Independent Contractor or Exempt Salaried Employee||Minimum wage violations, overtime claims, failure to pay for all hours worked, meal period claims, rest period claims.|
|Meal Period and Rest Period Claims||Failure to provide timely, duty free, uninterrupted rest periods can result in liability for one hour’s wages per day|
|Failure to pay for all hours worked||Wages owed at rate no lower than the minimum wage; may be claim for overtime; may be claim for payment at the employee’s regular rate of pay rather than minimum wage|
|Failure to pay wages upon termination||Employee entitled to waiting time penalty equal to one day’s pay for each day paycheck is delayed, up to maximum of thirty days|
|Failure to pay business expenses||Employee is entitled to full payment of unreimbursed business expenses; these most commonly relate to mileage or cell phone usage.|