Legal Guide to California Labor Board Laws in 2019
The California Labor Board accepts employee claim on a myriad of issues, but generally speaking these claims fall into three categories:
- Unpaid Wages
- Equal Pay Act Violations
Labor Board claims most commonly involve wage and hour issues. As stated, the Labor Board will also handle claims relating to certain types of wrongful termination, specifically retaliation claims, as well as claims based on Equal Pay Act violations.
Most Common Labor Board Claims
The most common claims that are brought in the Labor Board generally pertain to unpaid wages, including but not limited to the following:
- Employer’s failure to pay for all hours worked resulting in unpaid minimum wage and overtime;
- Employer’s failure to pay a one-hour premium for all missed, late or shortened meal breaks and rest breaks;
- Employer’s failure to reimburse for all business-related expenses, such as cell phone, uniform or tools;
- Employer’s unlawful deductions of compensation due and owing;
- Employer’s failure to pay all non-hourly/non-discretionary payment due, such as commissions, bonuses, and other flat amounts;
- Employer’s failure to properly accrue all vacation and/or sick leave pay, or failure to pay all vacation and/or sick leave pay owed upon employment ending;
- Waiting time penalties; and
- Independent Contractor Misclassification resulting in all or some of the foregoing violations
- Equal Pay Violation
If you are alleging a claim for minimum wage violations, you should highly consider also including liquidated damages, which is essentially two times minimum wage. Labor Code Section 1194.2 states that in any action to recover wages because of the payment of a wage less than the minimum wage fixed by an order of the commission or by statute, an employee shall be entitled to recover liquidated damages in an amount equal to the wages unlawfully unpaid and interest thereon.
Retaliation is when your employer takes adverse actions against you for engaging in protected activities. Adverse action may include any of the following:
- Changes in hours or pay
- Discipline or threats
When you exercise your workplace rights, you are protected under anti-retaliation laws—but not every activity is protected. Common activities that are protected from retaliation include:
- Refusing to work in unsafe conditions or complaining about health and safety conditions to your boss, a government agency, or a labor union
- Filing a wage claim with the Labor Commissioner’s Office or complaining about unpaid wages to your employer
- Testifying in support of a coworker’s wage claim
- Assisting an investigation of your employer by a government agency
- Refusing to sign an agreement that you will not file a claim against your employer or disclose information about your employer’s working conditions; Providing your employer with updated personal information such as a different social security number or other employment-related information due to a change in immigration status
- Using sick leave to attend to a sick child, parent, spouse, or domestic partner
- Taking time off to address a domestic violence or sexual assault crime for your own or your children’s health, safety, or welfare, or to attend court proceedings related to the abuse or assault
- Requesting a reasonable amount of time and a private space to pump breast milk.
Labor Code section 1197.5 prohibits an employer from paying its employees less than employees of the opposite sex, or of another race, or of another ethnicity for substantially similar work.
Claims Not Handled By The Labor Board
Claims that the Labor Commissioner does not have authority to handle are the following:
- Independent Contractor disputes where employees is properly classified as an independent contractor;
- Claims covered by a Collective Bargaining Agreement; and
- Most claims by government employees; and
- Workplace discrimination complaints based on race, color, ancestry, religion, age (40 and over), disability, medical condition, genetic information, sex (including pregnancy), sexual orientation, marital status, military and veteran status, or national origin (including language restrictions). These claims should be filed with the Department of Fair Employment and Housing (“DFEH”).
While the Labor Board does not handle disputes between independent contractors who are performing service, the Labor Commissioner’s Office will hear your case if it is based on misclassification as an independent contractor. If you were classified as an independent contractor, it is advised that you contact a lawyer or the Labor Board to confirm whether you may have a right to bring forth a claim.
Union members are generally covered for a majority of wage issues under a Collective Bargaining Agreement (“CBA”). If the employer does not comply with the CBA, then the employee generally must file a grievance with their union in accordance with the grievance procedure set forth in the CBA. However, the Labor Board will hear claims for general Labor Code violations, such as minimum wage, overtime, meal and rest break, and others, so long as the California Wage Order is not permitted to and/or does not allow the CBA to alter these Labor Code provisions. If you’re a union member and subject to a CBA, it is advised that you contact a lawyer or the Labor Board to confirm whether you may have a right to bring forth a claim.
While not always the case, most government employees are also union members and are subject to other procedures, such as an EEO process, and therefore do not have the right to directly file Labor Board claims. If you’re a public employee, it is advised that you contact a lawyer or the Labor Board to confirm whether you may have a right to bring forth a claim.
Time Limits To Bring Your Claims
There is a limit on the amount of time you have to bring your claims, otherwise known as the “Statute of Limitations.” Each claim has its own time limit, although many of them are the same. Below is a list of some of the primary claim time limits. However, it is highly advised that you refer to the Labor Code for each specific claim or contact the Labor Commission’s Office to obtain the statute of limitations for each of your prospective claims.
- Your claim will generally go back three years from the date you file if it is based on minimum wage, overtime, unreimbursed business expenses, or unlawful deductions violations.
- Your claim will generally go back two years from the date you file if it is based on an oral agreement to compensate you any amount in addition to minimum wages.
- Your claim will generally go back four years from the date you file if it is based on a written contractual agreement to be compensated a certain amount
- The time limit for a claim based on waiting time penalties will be contingent upon the underlying types of wages you allege you were not paid, as described above.
- You must file a complaint with the Labor Commissioner’s Retaliation Complaint Investigation Unit within six months of the retaliatory act. (However, there are a few exceptions to this rule)
- The limit to file an Equal Pay Act claim is generally two years from the date you file, but can be extended to three years if you are alleging and can prove that the Equal Pay Act violations were willful.
Evidence To Prove a Violation of Labor Board Laws
In order to prove your claims, you should considering gathering the following pieces of evidence:
- 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.
It is noteworthy to mention that nearly all of the violations of California law that result in Labor Board claims, can also be brought in California and federal civil court. There are several competing interests or factors to consider in deciding whether to file and prosecute these claims in the Labor Board or in civil court. For example, you can generally request more damages and obtain larger awards in civil courts. However, the process may not only take longer, but is very complex and generally requires a lawyer to represent you.
If you would like further information about the Labor Board process, or how best to prosecute your claims, or just to generally know whether you may have a claim, please contact our law office by phone or online submission to schedule a free consultation with an experienced attorney.