I was preparing to explore the theorizing that I and other bloggers did in the wake of Genrty that it would have implications for employment contracts in general, when I came across this footnote in the recent Murphy v. Check ‘N Go case. “Plaintiff requests judicial notice of information on the process for bringing claims before the Labor Commissioner, which is offered to show that this process ‘does not provide the same protections for the employee and is not an adequate substitute for a court proceeding. . . .’” (Slip. Op. at 9-10 n.1)
I’ve noticed a few times where this has come up. Here, it was a submission by Plaintiff/Appellee. The California Supreme Court did it in Gentry, the Court of Appeal did it in Sumuel v. ADVO, Inc. The Court’s have also declined to give any weight to the DLSE’s opinion letters, and disavowed the notion that the DLSE could issue precedent opinions.
A couple of years ago, the Legislature passed a bill (which was vetoed) that would have required the employer to show up at the DLSE hearing instead of skipping them and waiting for their day in court (AB 879 of 2005.) I was told by a spokesman for the bill’s author that this was to prevent employees from “spinning their wheels” with the Labor Commissioner.
Now, employers generally hate the DLSE and the entire Berman hearing process. The so-called de novo review has been rendered almost useless for employers because in order to avoid paying the employee’s attorney’s fees, you must negate all of their recovery. But, the DLSE is, on its face, an even cheaper and more streamlined way to resolve wage hour disputes than the arbitrations many businesses are spending major coin to uphold. There are no class actions. There are no punitive damages. There is almost no discovery. Lawyers aren’t required. The rules of evidence are very liberal.
On the other side, employees don’t need a lawyer, get help from the staff, and generally get their money in a matter of weeks, not months or years. The notion that small recoveries don’t work there are ridiculous. I’ve been sent to defend claims of around $100! The employee only lost a few hours of paid time off. On top of that, the waiting time penalties almost always make it a gainful proposition for the employee, who does not end up giving a huge chunk to an attorney. And guess what? They have really smart, experience, and knowledegable attorneys like Bill Reich who will represent you for free if there’s an appeal.
Yet, no one wants to go there. No one wants it to do anything or have anything to do with it. Is this simple interest group stuff and/or turf battle stuff? (It’s unfair for employer-side attorneys, not cost effective for their clients, cuts into plaintiff’s attorney’s “market share,” and does a judicial function that the courts think/know they’re the best at) Is that too cynical? or too naive? I’m not sure.
One of the contentions is they can’t handle the extra load. Last I checked, the courts were bursting at the seems themselves. It seems to me that given the choice, funding the DLSE to handle a higher load is cheaper than doing the same in the courts. But if we fund up the courts, then are we paying for the DLSE for?
Please leave comments or send me an e-mail if you have any thoughts about this. I am genuinely confused.
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I have mixed feelings about the Labor Commissioner. I have been representing employees and employers at the Labor Commissioner since I was in law school and tend to get some very inconsistent results. At my very first hearing the hearing officer required me to admit the IWC Order into evidence. I was only a second-year law student but I knew I shouldn’t have to admit the law into evidence. I was tempted to ask the hearing officer if I should also admit the Labor Code while we were at it.
I once had two clients with virtually identical claims against the same employer. The hearings occurred on two different dates and I received opposite results. I would have chocked this up to different hearing officers reaching different results based on the credibility of the witnesses, but I had the same hearing officer in both cases and I couldn’t see how one claimant was any more credible than the other.
Ten years ago I could get through the Labor Commissioner process (complaint to hearing and decision) within 6 to 9 months at the most. Our local office now takes over a year. While the informal conferences occur fairly quickly (1 to 2 months after filing), it takes 4 to 6 months to get a hearing date. Even after the hearing, it takes 3 to 4 months to get the decision. If no one appeals the decision, it takes another 2 to 3 months to get the Order turned into a judgment. It is my understanding that the vast majority of the delays results from the clerical staff because they are understaffed.
I can usually get to trial and get a judgment in a Limited Jurisdiction case faster than that.
Another problem is that (at least at our local Labor Commissioner office), any case that is worth more than $35,000.00 is reviewed by the senior deputy after the informal conference. If the case is too complex or if the parties are represented by counsel, the case will be dismissed requiring the claimant to file in court anyway.
My biggest pet peeve with the Labor Commissioner is its incessant attempts to create law without the authority to do so. The Labor Commissioner has made repeated attempts to create regulations. For example, with regard to meal breaks the Labor Commissioner spent time and money trying to adopt regulations despite the fact that the Labor Commissioner is now empowered to adopt regulations. When that failed, it decided to implement “precedent decisions” as an end-run around its inability to promulgate regulations and an attempt to avoid the Administrative Procedures Act. The Labor Commissioner still does not understand that the legislature empowered the Industrial Welfare Commission, not the Division of Labor Standards Enforcement, to promulgate regulations as evidenced by the Labor Commissioner’s latest attempts to create regulations regarding expenses under Labor Code Section 2802.
For all its problems, however, I think the Labor Commissioner is an excellent route for employees and something too many employers ignore. From the employer perspective, the Labor Commissioner process offers the employer a low-cost way to resolve the claims. It also defeats the threat of attorneys’ fees which is often the biggest concern in a wage and hours case. Additionally, any plaintiff’s attorney worth their salt realizes that they can double the value of their client’s claims in court by adding causes of action that are not available at the Labor Commissioner. Therefore, it is in the employer’s interests to try to resolve claims while the matters are still before the Labor Commissioner to avoid significantly greater exposure.
Of course, that’s just my opinion. I could be wrong.
(*BTW, Excellent Blog! Keep up the good work!)
You might want to check out a new blog, “California’s Division of Labor Standards Enforcement has no labor standards of their own!” It is at http://nolaborstandards.blogspot.com/. Apparently written by insiders at DLSE, it is snarky but apparently tracks real abuses of power (or what appear to the blogger to be abuses, in any event).
I have only skimmed it, but let’s just say no one’s respect for the DLSE is likely to increase from reading it.
Greg
True story:
I represented an employee whose employer simply stopped paying him for about a month before he simply quit. He was salaried, but incorrectly classified as exempt, so we had an overtime and minimum wage case.
We went to a hearing on the claims and the employee testified that he went to work at the same time pretty much every day and left about the same time. The employer (represented by their HR rep) disputed this orally, but did not introduce any evidence to support it and did not keep any record of hours worked whatsoever. The hearing went well and I felt pretty good about it afterwards.
Five days later the hearing officer issued an opinion finding in my client’s favor, but awarding him no money at all because we did not introduce any evidence to prove how many hours he worked each day. It should be noted that the employer alleged that the employee worked 8 hours each day (and did not receive any wages at all).
It’s the Wild West over there and the “good guys” don’t always benefit from their quackery.
I am personally aware of many businesses, small, medium, and large, who have been damaged by DLSE.
DLSE’s conduct is not only abusive, but it should be considered UNCONSTITUTIONAL.
What legal process sits OUTSIDE of judicial processes, ignores the legal precedence, and damages Californian’s for tens of millions of dollars per year?
DLSE is a travesty and no amount of $100.00 settlements can equate to the billions in damage that Starbucks, Boeing, Cheesecake Factory, San Diego Children’s Hospital, and more suffer each passing week as this “pro-business” governor continues to permit a state agency to deny fair hearing rights to stockholders and business owners.
This is tantamount to a forced and coerced governmental seizure of assets and private property WITHOUT trial!
the dlse just screwed me,i was a employee,i had taxes with held from my pay,my employer even with held liability ins and workers comp from my pay. and the dlse ruled that i was a independent contractor, i wish a good attourney would sue the dlse,i would be on board asap. the dlse employees are totally in competant. the dlse is a total waste of tax payer money.
Wow thomas, I have a feeling that my hearing is going to turn out to be just like yours. I think that the DLSE is a wast of taxpayers money, but I’m stuck in the process. I was terminated and my employer didn’t payout my sick leave balance and made all sorts of illegal deductions from my final pay, not to mention claiming that I couldn’t get my credit-time hours paid-out. I hope that my case is clear to them, but from what you’re saying its like proving the world is round to a bunch of idiots!
If DLSE did something wrong and violation, please write a complaint letter to The Governor and to your State Lawmakers. If possible also send a copy of your letter to your U.S. Labor Department, Federal Lawmakers and the U.S. President as well to let them know those laws unenforced violators who are unfit to serve the public and needed to be removed out of the DLSE offices. Good Lucks and Happy New Year!!!
No dissing the DLSE here, sure they’re backed up – what isn’t. It’s humorous to watch 5 years of gutted budgets for these Calif admin and enforcement agencies, then listen to Calif. taxpayers whine about delays, lack of attention, and lack of resources. Just what did we expect would happen? And, as far as inconsistent outcomes, are guarenteed outcomes available in our local courts? Not the courts I’m going to. As far as my dissing the Commissioners and staff, I’ll wait until their budget increases by 200-500%, then I’ll start making my demands that they improve their game. For right now, I’m glad they’re doing the quality job they are and they have my support.
I can understand and my heart goes out to the DLSE for their backed up case load. They’ve told me there’s only 10 investigators for the entire State of California.
That said, as an employee trying to get a fair hearing, it seems that when the “Investigator” finally gets around to working on one’s case they don’t have much interest in arriving at the truth. They seem to want what is expedient, and they will mold the evidence into it’s exact opposite if they need it to fit. My “investigator” said “I need to get this off my desk” the same day she informed me of her faulty investigation and my inability to rebut a single error she had made in her slipshod investigation.
When a DLSE Deputy informed me she had finally “finished” her investigation (years after it was filed), she told me some very inaccurate information she gathered from another office of the DLSE. Basically, the employer lied to another Deputy about the policy I was fired for complaining about, the DLSE Deputy caught the Employer and reopened the case due to the fraud – and it was mistakenly closed by someone else. This “Investigator” told me to my face it was *never* closed, and took a year to close the original case(!). Even on an Appeal that noted this, the next “investigator” cut-and-pasted the wrong information from the first one, using it to justify her support of the lying Employer. I am in possession of the actual DLSE database that was in place when the “Investigator” visited, and it clearly shows the reopening – without a doubt.
Since the Determinations were (allegedly) reviewed by 2 Deputies, the Labor Commissioner and the Director of Industrial Relations, I can only surmise that either rampant corruption or incompetence is the DLSE’s guiding principle.
I can understand being overwhelmed in your work, but that’s no excuse for not doing a proper job when you finally get around to working on a case. It serves nobody to change or disregard the evidence that does not fit your prejudices.
This will chill you to the bone , I recieved unemployment, company was audited by EDD for failure to report payroll tax, then the underground economy found they had not covered workers for workers compensation insurance, and threatened thier contractors licience, I recieved workers comp. settlement, Bla Bla Bla, and the DLSE said I was an independant contractor, I went to de novo hearing the judge Scott L. Kays , ruled I was a Independnat contractor, I contracted The Govenor, who requested a investigation, later I recieved a letter from the Commissioner who stated I was not an Independant contractor, and fired the hearing oficer who made that “bias” mistake.it was too late cause I was then at the appellate level, but the Courts in Solano County seen the letters but still kept the same ruling, i was hospitilized after that, but I continue to think what could wedo? well i have 10 years legal exp. and have great conections, and I will be soon writing the president, and anything I can do to stop the crupt activity of the DLSE, and California employees.
dont forget Arnold is for BIG BIZ and he apponted these people and judges and heads of these administrative agencies.
lets put heads together and “CHANGE” the labor laws and proceedures of the DLSE
Elisa Brown and DLSE Victim,
You can also write to Los Angeles Times newspaper and ACLU to look into a class action lawsuit since there are too many victims because of unlawful action of the DLSE.
I have an active appeal going on with DLSE Commissioner Bradstreet to investigate a hearing officer who accepted prima facie fraudulent evidence as factual evidence for the employer. When I initially attempted to provide evidence at the hearing that it was fraudulent, the hearing officer interrupted me and told me I could only present evidence of fraud at a criminal court and not at a civil hearing. The hearing officer also denied a subpoena order that the DLSE drew up on a completely false basis that was critical evidence that would have substantiated all my claims. The hearing officer, in her decision, then fabricated the testimony of the employer, reinvented the evidence of this employer and completely ignored the fraudulent evidence that I was able to prove during the hearing as completely fraudulent.
The labor Commissioner assigned this investigator who whitewashed this hearing officer’s gross misconduct and refused to address the evidence I presented supporting my allegations of this hearing officer’s corruption. I’ll quote from this investigator in regard to the subpoena order, “[W]e cannot enforce the subpoena if the party does not comply.” Neither the employer nor their lawyer ever stated that they wouldn’t comply with the order at the hearing and is categorically a gross misstatement because not to comply with a subpoena order is in fact a criminal act as stated in California Labor Code Section 93!
I contended to the labor commissioner that this was a whitewash and there was no evidence that in fact the investigator ever listened to the hearing tapes and other evidence as she stated she had.
I could go on and on and on about the corruption and dishonesty of the DLSE as I experienced it. It is obvious to me that the DLSE has no respect for due process or the labor laws. The senior deputy even held up the defendant’s check intended for me because I had complained about this hearing officer! I could hear laughing in the background when this senior deputy then conferred to me that they had given my complaint to a furloughed officer! What a confederacy of lamebrains!
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