Many people have heard of California the Labor Commissioner (sometimes referred to as the Labor Board or the Labor Commissioner’s Office). This article discusses what the Labor Commissioner actually does, and the pros and cons of using the Labor Commissioner to resolve a dispute with your employer instead of filing a lawsuit.
Who is the Labor Commissioner? What types of employment law claims do they hear?
In short, the Labor Commissioner is a quick and theoretically more user friendly venue for employees to try and resolve payment and wage disputes with their current or former employers. It operates similar to a regular lawsuit; the employee files a claim and later gets trial in front of a Labor Commissioner who acts as both judge and jury and decides the outcome. A ruling is then issued which has the same force and effect of a judgment issued in regular civil court. If the employee prevails, this means that the employee will get an award of monetary damages.
The Labor Commissioner is not made up of one single office or commissioner, but twenty separate offices located across California, including offices in Salinas and San Jose operated hundreds of Deputy Labor Commissioners. .
On paper, the Labor Commissioner has the legal authority (called “jurisdiction”) to resolve a wide variety of employment disputes. The reality, however, is that the vast majority of employees use the Labor Commissioner to resolve one or more of the following types of wage disputes:
Unpaid overtime (i.e. when employees work longer than 8 hours per day or more than 40 per week);
Missed meal periods, lunch breaks, and rest breaks;
Unpaid Paid Time Off or vacation paid;
Waiting Time Penalties (i.e. when employees are not issued a timely final paycheck);
Misclassification claims (i.e. when an employer claims the employee is “salaried” and/or is not entitled to receive overtime);
Independent contractor misclassification claims (i.e. when an employer claims the worker is an independent contractor and not an employee).
Generally speaking, the Labor Commissioner’s Office does not have the jurisdiction to resolve wrongful termination or retaliation claims. These types of cases are administered by the California Department of Fair Employment and Housing.
What are the benefits of the Labor Commissioner’s Office?
For perspective, employees are not required to go to Labor Commissioner’s Office to resolve a payment dispute with their employers. Employees have the option of pursuing the same types of claims in regular court or negotiating directly with their employer instead of pursuing a legal remedy with the Labor Commissioner.
There are three main benefits of using the Labor Commissioner. First, filing a claim is free. Employees do not have to pay any money to submit their claim and get a trial. In contrast, it costs $435.00 to file a lawsuit in regular court and this is just one of many types of costs associated with a lawsuit. Since the Labor Commissioner does not charge any sort of fee, employees have an incentive to bring claims for relatively small amounts and for legally tenuous claims.
Second, the Labor Commissioner resolves cases much faster than regular court. After an employee files their claim, employees will generally get a hearing and a final ruling within six to eight months. In contrast, pursuing the same claims in regular court can take two years or more.
Third, the Labor Commissioner is much more user friendly than regular court and the process is designed for persons without attorneys. The Labor Commissioner uses relatively user-friendly pre-printed forms, all of which are available online. There is no requirement for an employee to draft a customized lawsuit dozens of pages long. There are very few rules related to the admission of evidence. In contrast, the procedures and rules that apply to pursuing a wage dispute in regular court are highly technical and are virtually impossible for a non-legally trained person to comply with. Failing to comply with a procedural rule in regular court can easily result in the judge throwing out your case.
What are the negatives associated with the Labor Commissioner’s Office?
There are many potential negatives to filing a claim with the Labor Commissioner instead of pursuing a claim in regular court. First and foremost, while on paper the Labor Commissioner is required to provide employees with a fair hearing and follow the law, this is not always the reality. The Labor Commissioner’s Office can be notoriously sloppy, lazy, and understaffed, greatly complicating the underlying employee’s claim and risking their chance of prevailing. Moreover, many of the persons who work at the Labor Commissioner’s Office responsible for administering your case lack legal training, even in the narrow issues of employment law supported by the Labor Commissioner’s Office. While the regular court system can also have these negatives qualities, the defects are much more pronounced and consistent with the Labor Commissioners’ Office.
Second, employees only have a limited opportunity to obtain “discovery” from their employer in a case with the Labor Commissioner. Discovery is the legally compelled sharing of facts, documents, and the names of witnesses from the opposing party in a lawsuit (or even from an entirely unrelated non-party to the lawsuit) which are relevant to the legal dispute. In other words, discovery is the mechanism to obtain evidence about your lawsuit before the actual trial. Sometimes, no discovery is required, however, the lack of meaningful discovery at the Labor Commissioner’s Office means that the most favorable evidence to your case will be suppressed if it is in the exclusive possession of the employer. Inversely, employees (and employers) may be ambushed by damaging evidence for the first time at trial.
Third, the Labor Commissioner generally cannot award attorney’s fees to a victorious employee. For those employees represented by attorneys, this can mean that the employer has far less incentive to settle your case because the employer does not face the additional risk of paying tens of thousands of dollars in addition to whatever is owed in unpaid overtime, rest breaks, and penalties.
In conclusion, there are positives and negatives to using the Labor Commissioner. The facts of a particular case determine if the positives and negatives are actually important to the specific case. For this reason, before a case with the Labor Commissioner is filed, it is prudent for the employee at least contact an employment attorney to see if the case is worth being brought as a regular lawsuit.
I’ve filed my Labor Commissioner Case. What happens next?
Assuming you have made an educated decision to file your claim with the Labor Commissioner and not in regular court, the next step is to appear at the mandatory pre-hearing conference. Both the employer and the employee are instructed to attend the conference, which is typically scheduled 60-120 days before the actual hearing or trial. At the conference a representative of the Labor Commissioner's Office (typically a non-attorney) will review the employee’s complaint and see if a settlement can be made. It is mandatory for the employee to appear at the pre-hearing conference and the employee’s failure appear will result in the dismissal of the case.
After the pre-hearing conference, the next major step is to attend the hearing or trial, called a Berman Hearing. The employee and the employer must bring their evidence and any witnesses to the hearing. The hearing takes place in a private conference room setting, nothing resembling a typical courtroom. At the hearing, witnesses will be sworn in. The judge, called a Deputy Labor Commissioner, will typically ask both the employee and the employer questions, which must be answered truthfully. The employer and employee may also cross examine each other. In the event the employer fails to show up, the employee must still prove their case.
The Deputy Labor Commissioner will typically write a detailed decision or judgment, sometimes several months after the hearing takes place. The parties have the ability to appeal the decision in regular court. However, there are strict and very harsh financial consequences if the employer unsuccessfully appeals a case from the Labor Commissioner. Employees should immediately search for an attorney in the event the employer appeals a ruling of the Labor Commissioner.
Do you have a case pending with the Labor Commissioner? Contact the Law Office of Brian Mathias.