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When Your Employee Sues – the DLSE

875413_balance, out of.jpgIn California, an employee has a few options for filing a work related grievance. When it is a wage and hour matter, the employee can sue in court or file a complaint with California’s Labor Commissioner. The Labor Commissioner is the Chief of the Division of Labor Standards Enforcement (DLSE), which is part of California’s Department of Industrial Relations.

The mission of the DLSE is, in part, to vigorously enforce minimum labor standards in order to ensure employees are not required or permitted to work under substandard unlawful conditions. The DLSE has jurisdiction to resolve employee complaints about wage and hour matters, among other things. Wage and hour matters include an employee’s claims for unpaid wages, unpaid overtime, missed meals and rest periods, waiting time penalties, minimum wage violations, and other related matters.

DLSE claims are handled administratively, meaning the process takes place in a less formal setting than the Superior Court. However, the informality should not make the employer let its guard down. On the contrary, employers that attend DLSE hearings without an attorney often are unprepared to defend themselves and regularly wind up with a result they did not expect.

An employer has some disadvantages in defending a claim at the DLSE. One major disadvantage is the lack of regular, pre-trial discovery that helps the employer test the veracity of the employee’s claims before trial. Further, unlike the Superior Court, the employer cannot file challenges to the employee’s Complaint to reduce or eliminate some of the employee’s claims before trial.

A DLSE matter typically begins with a Notice of Claim and Conference. The purpose of the Conference is to see if the DLSE can assist the employee and employer resolve the case without the need for a Hearing. When the Conference is unsuccessful, the DLSE sets the matter for a Berman Hearing. A Berman Hearing is the equivalent of a trial. Evidence is presented, witnesses give statements, documents are used and a Hearing Officer oversees the hearing. The Labor Commissioner’s Office issues an Award based on the evidence presented to the Hearing Officer.

A Labor Commissioner’s Award is just as serious as a civil court judgment. The appeal period for an Award very short and the employer must post a bond to obtain a de novo (entirely new) trial in the Superior Court. The DLSE may appear on behalf of the employee in the Superior Court. An employer’s failure to overturn the entire Award means the employee will be entitled to attorney’s fees in addition to the amounts awarded.

Employers should talk with an employment attorney when they receive a claim from an employee. An experienced attorney will help the employer understand what it takes to fight the claim and assess the pros and cons associated with the forum for the dispute.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering this issue.

CONTACT INFORMATION Simon Mazzola provides legal expertise in employment, business, and construction matters. The Mazzola Law Office, 1001 Bayhill Drive, Suite 200, San Bruno, California 94066. Telephone: (650) 403‐4802