How To Prepare For A Labor Board Hearing
Notice of Hearing
If your case is not dismissed or settled, within approximately six weeks prior to your hearing, the Labor Commissioner will send a “Notice of Hearing” to you and to your employer. The Notice will provide the time and place of your hearing and the name of the hearing officer (i.e. similar to an administrative judge). You may attempt to reschedule the date and time of your hearing by contacting the hearing officer, but they are under no obligation to do so.
Preparing For The Hearing
The hearing is similar to an informal trial, almost like a small claims case. You must convince the trier of fact, in this case the hearing officer, that your claims are meritorious. You will want to think about how you are going to prove how much you should have been paid, or in other words, precisely how you were underpaid. For example, in a minimum wage claim, you will likely need to establish certain factual points as evidence, such as a) what your rate of pay was; b) how many hours you actually worked; c) how many hours were you paid for; and d) the relevant law supporting that the failure to pay for all hours worked resulted in minimum wage violations, liquidated damages, waiting time penalties and wage statement violations.
For a minimum wage claim, you should consider bringing as evidence the following:
- Wage statements (i.e. paystubs);
- Time-Keeping records;
- Employment Agreement and 2810.5 Notice To Employee;
- Employee Handbook describing the employer’s relevant policies;
- Witnesses who will testify in support of your claims;
- Affidavits signed under penalty of perjury in support of your claims;
- Any written correspondences (i.e. emails, text messages, etc.) with your employer in support of your position; and
- Other documents from your employer that support your story.
You should come with three copies of any documents you intend on presenting at the hearing. (i.e. one for yourself, one for the hearing officer and one for your employer).
Requesting a Subpoena
You may request that the Labor Commissioner issue a subpoena requiring your former employer to bring certain documents to the hearing. In order to obtain a subpoena, you must go to the Labor Commissioner’s Office and fill out/submit a Request for Subpoena. This must be done at least fifteen business days prior to your hearing, but should be done much earlier. They are not required under the law to provide thee prior to the hearing, but you can attempt to ask your employer in writing to provide them prior to the hearing. If you request them prior to the hearing in writing and your employer does not comply or directly refused, you should bring a copy of this correspondence to the hearing as persuasive evidence in support of your employer’s lack of “good faith.”
You also have the right to subpoena a witness. If the subpoena is granted, then by law the witness has a duty to appear at the hearing. This comes in handy when a witness has informed you that they are not willing to appear, or if a witness has informed you or you otherwise believe they will not appear in fear of retaliation by their employer.
You also want to try to anticipate your employer’s defenses to each of your claims. You may have some indication of this already from your employer’s statements in the Pre-Hearing Conference, or in other correspondences or conversations that you may have had. Otherwise, you should try to think about how your employer may try to disprove your claims.
Chronology Of Events At Hearing Procedure
The basic chronology of events at the hearing is the following:
- Introductions by the hearing officer
- Employee provides his or her direct testimony (i.e. statements about his or her claims). The employer and the hearing officer have a right to cross-examine (i.e. ask questions to the employee that he or she must respond to)
- Employee provides supporting evidence (i.e. documents and/or witnesses). The employer and the hearing officer have the right to cross-examine the employee’s witnesses
- Employer (or their representative) provides his or her direct testimony (i.e. statements about his or her claims) The employee and the hearing officer have a right to cross-examine (i.e. ask questions to the employer (or their representative) that he or she must respond to)
- Employer (or their representative) provides supporting evidence (i.e. documents and/or witnesses) The employee and the hearing officer have the right to cross-examine the employer’s witnesses
- Closing statements by both parties
- Closing statement by the hearing officer
The Hearing Officer’s Order, Decision or Award
The hearing officer generally makes a decision within fifteen to thirty days following the hearing. If you have not received the decision after thirty days, it’s advised that you contact the Labor Commission’s Office to obtain a status on the decision. The first page of the order, decision or award (it could be called by any of those names) will inform you whether you have prevailed or lost on all or some of your claims. The rest of the document generally describes how the hearing officer arrived at his or her decision.
Appealing The Order, Decision or Award
The decision, order or award is not finalized until the deadline to appeal has passed (and no one has appealed during that time period). Either party may appeal a lost decision. Either party will have ten days from the date you receive the decision, order or award to appeal the claim. Put another way, IF YOU WANT TO APPEAL YOU MUST FILE YOUR APPEAL WITHIN 10 DAYS OF RECEIVING THE LABOR COMMISSIONER’S ORDER, DECISION OR AWARD.
The decision in your case does not become final until after the deadline to appeal. Appeals are not heard by the Labor Board, but rather the appeal is turned over to the civil Superior Court, who will hear your case again. You will have to go through the process of presenting your evidence and testimony again. It is highly advised to contact an attorney to counsel you for an appeal due to the fact that you are now in Superior Court. However, you are permitted to handle the appeal without any representation. For more information on appeals, please feel free to contact our law office at the number provided herein.