How to File a California Labor Board Complaint: 2019 Guide
What is the California Labor Board?
The California Labor Commissioner’s office, otherwise known as the Division of Labor Standards (“DLSE”) or the “Labor Board” receives individuals employee complaints regarding unpaid wages and also retaliation at the workplace and attempts to settle these claims through both an investigation and hearing.
Should I file a complaint with the Labor Board or in Small Claims court?
The Labor Board is generally a superior forum for an unpaid wages case than small claims court for several reasons. First, the Labor Commissioner’s Office generally has significantly more experience in handling unpaid wages claims and therefore has a better understanding of the applicable laws, such as the California Labor Code. Also, unlike Small Claims, the Labor Board does not have a $10,000 limit on its awards.
Should I file a complaint with the Labor Board or a complaint in civil superior court?
The Labor Board is generally a more suitable option for individuals who are handling claims by themselves (i.e. without a lawyer) than filing in civil superior court. The primary reason is that if you file in superior court you will be subjected to the procedural rules of court, which most non-lawyers will find to be very difficult to comply with. While you do have the right to hire a lawyer to assist you in a Labor Board case, the purpose of this Guide is to assist individuals who do intend on hiring a lawyer or otherwise experienced representative.
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 1 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
- Retaliation 2
- Equal Pay Violation 3
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 4 ;
- Claims covered by a Collective Bargaining Agreement 5 ; and
- Most claims by government employees 6 ; 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”).
Time Limits (Statue of Limitations) To Bring Your Labor Board 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 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. 7
- 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.
How to fill out the Labor Board Initial Report or Claim
The Initial Report or Claim is the document which initiates the case with the Labor Commissioner’s Office. You may download the Initial Report or Claim here: https://www.dir.ca.gov/dlse/forms/wage/english.pdf, or pick up a copy from your local Labor Commissioner’s Office.
You want to try to provide as much information as possible that is being requested, and to the best of your ability. As an example, if you do know the exact date of your termination or the exact date range of when you were employed by the company, you should still fill in your closest approximation to those dates. If a certain section does not apply to you, feel free to write into that section “Not Applicable” or “N/A”. Below is a brief description of some of the unique inquiries on the Initial Report or Claim.
- Did you keep a record of hours worked? This question is asking whether you or your employer had maintained any time keeping records. Typically, the answer would be yes if your employer had an electronic clock in/clock out system, or a written timesheet or other time keeping practice. This could also be a journal kept by you or a phone application, or copies of a work schedule.
- Total Hours Worked: You should provide your regularly scheduled hours worked for the company, not the amount of hours you were not paid (i.e. If you worked 50 hours per week and were only paid for 40 hours, then you should state that you worked 50 hours per week (not that you had 10 hours of unpaid wages per week).
- Rate of Pay: You should input the hourly rate or other compensation that you believe you were supposed to be paid, not what you were actually paid. If your rate of pay changed and you are demanding unpaid wages that would impact multiple rates of pay, then include each of them and the time periods in which you were paid each rate of pay. Include any and all additional pay, such as bonuses, commissions, etc.
- Brief Explanation of Issues: You should enumerate the various claims you are making, such as the wages and penalties you allege that you are owed. You may attach an additional sheet of typed or handwritten paper if you do not have enough space on the Initial Report or Claim. For penalties, make sure to include waiting time penalties. You may arguably attempt to also claim wage statement penalties. 8
- Amount Claimed: This is the total amount of unpaid wages you are asserting that you are owed. Arguably, this section may not include waiting time or wage statement penalties.
- Were you Paid at the Time of Discharge: This question is asking you if you were provided a final paycheck at the time your employment ended. Responding to this question and relating questions on the Initial Report or Claim requires an understanding of Labor Code Sections 201-203 9 . It is noteworthy to mention that if you are claiming any unpaid wages, then the employer by default has not provided you with a final paycheck which included all wages due and owing at the time your employment ended. Therefore, you should fill this in as “No.”
- Interpreter Needed: If you are not an English speaker, or you are only conversational in English and fluent in another language, then it is advised that you check this off and fill in the first language that you are fluent in. The Labor Board generally will coordinate to have an interpreter in your fluent language available during the informal meeting and/or hearing.
How to file your Labor Board complaint
You have several options for filing your Initial Report or Claim. The easiest way is to file it online at: https://www.dir.ca.gov/dlse/HowToReportViolationtoBOFE.htm. You may also mail it in or hand deliver it to the Labor Commissioner’s Office nearest to you. However, we have found that mailing it in or hand delivering it to the nearest Labor Board Office to your work location may speed up processing times.
Labor Board Pre-Trial Hearing & Notice of Claim and Conference
Typically the Deputy Labor Commissioner handling your claim will set up an informal meeting between the parties following the filing of the Initial Report or Claim. You generally may find the Deputy Labor Commissioner’s contact information on the Notice of Claim and Conference form that is sent to you and your employer prior to the informal hearing. The Notice that you will receive by mail will also include the date you filed your Initial Report or Claim and the date for the informal hearing, otherwise known as the “Pre-Hearing Conference.” The employee (you) are required to attend this meeting in person. NOTE – if you do not attend this meeting, the Labor Board may very likely dismiss your claim altogether. For this reason, it is highly advised that you show up timely, or even early to the conference. The employer, on the other hand, is not required to attend this meeting, or generally can attend this meeting telephonically. If you are unable to attend the meeting due to a scheduling conflict, you may attempt to contact the Deputy Labor Commissioner to reschedule, but there are under no obligation to do so. If both the employee and employer attend the informal meeting, the Deputy Labor Commissioner will likely attempt to encourage both parties to resolve the claim.
How to prepare for Labor Board Pre-Trial Hearing: Evidence to bring to the Pre-Trial Hearing
If the parties are unable to resolve the claim during the Pre-Hearing Conference, then the Labor Commissioner will determine if the case should continue or be dismissed. Considering the Deputy Commissioner has the ability to dismiss cases at this stage, it is pivotal that you have astrong understanding of your claims and come ready to discuss them in detail. Be ready to answer questions about your job such as how much you worked, what kind of work you performed and which specific hours or days you were not paid for. You should also gather all your evidence prior to the informal meeting. Evidence may include your pay stubs, any time sheets or other time-keeping records, commission/bonus, salary or severance agreements that were not honored, non-compliant compensation or meal/rest policies, employee handbooks demonstrating the employer’s breach of a written or implied contractual agreement, etc. You may also want to bring a list of witness names and be ready to explain the relevance of each witness to your claims. You could also bring affidavits signed under penalty of perjury by your witnesses as evidence in support of your claims.
Amending your Labor Board Complaint
If the case does not settle at the conference and the Deputy Commissioner does not dismiss it, then he or she will draft an official Complaint. You have a right to review the Commissioner’s official Complaint and you should do just that. You want to review it for any mistakes, such as the amount you allege you are owed, the claims/Labor Code violations you are alleging, the amount of hours or commissions you believe you were not paid for, etc. Upon review of the Complaint, if you notice any mistakes you may contact the Deputy Commissioner (after the hearing) to revise it upon their discretion. This is called “Amending the Complaint.” The proper procedure for Amending the Complaint is to send a letter (or email if the Deputy Commissioner has provided it) explaining in detail the revisions you are insisting be made and the reasons why. In order to avoid continuances of your final hearing date, you should do this as soon as possible.
What is a Labor Board 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.
How to prepare for your Labor Board 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) 10 ;
- Time-Keeping records 11 ;
- 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 12 ;
- 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).
How to request a subpoena in a Labor Board action
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.
Description of Labor Board Hearing: Chronology of events
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)a. 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 a Labor Board Order, Decision or Award
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, 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.