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!

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 have only skimmed it, but let’s just say no one’s respect for the DLSE is likely to increase from reading it.

Greg

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!)