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Have you Received a Notice from the Labor Commissioner About an Employee Suing You?

Many California employers have received a notice of conference from the labor commissioner. This is because California employees or former employees can bring their wage and hour claims before the state’s Division of Labor Standards Enforcement (DLSE). The DLSE enforces California’s labor laws and wage orders. Under the California labor code, the labor commissioner (who leads the DLSE) and deputies have authority to investigate complaints and to hold hearings “in any action to recover wages, penalties and other demands for compensation.”

PRE-CONFERENCE

When your employee or former employee (“claimant”) files a wage claim with the labor commissioner, you will get a letter from the DLSE. The claim process generally happens in two rounds. First, you will receive a notice of conference with instructions to appear at a certain date and time. This is a preliminary meeting to discuss the basis for the charge. The claimant will have the opportunity to discuss what is written in the claim form and then you will be able to present your side. The labor commissioner will try to help reach a settlement between the both of you during this conference.

Thus, it is important that you assess whether you will likely be found liable for any damages prior to the conference. It is wise to get an evaluation from employment counsel. Nevertheless, counsel is not required to be present at the settlement conference or the hearing.

CONFERENCE

Make sure to show up to the conference. If you cannot or do not appear, the deputy labor commissioner may discuss the matter with the claimant. Depending on the labor commissioner, and with permission, he or she may allow you to attend the conference via telephone. If the claimant sufficiently establishes a case, the matter will proceed to the more formal hearing. On the other hand, if the claimant does not appear, the claim will be dismissed unless the claimant can provide a good reason for missing the meeting.

During the conference, the labor commissioner may amend the complaint or dismiss it if there isn’t a valid claim. Generally, the commissioner finds enough evidence to move to the hearing. If there are valid claims, you should be prepared to settle. When entering a settlement agreement, it is very important to have the claimant sign a settlement agreement with a release of claims. It is my recommendation that you meet with employment counsel to assure that such a settlement agreement in fact releases all claims of liability.

HEARING

If the matter isn’t settled, then a hearing will be scheduled, and you will receive a notice of hearing. The hearing will be recorded, and any witnesses will testify under oath. At this point in time, you should truly understand the claim and gather any supporting documents such as payroll records, handbook policies, performance documents and disciplinary actions. The hearing officer, who is conducting the hearing, will not have any supporting documentation that you previously provided to the labor commissioner, so you must submit all of your evidence at the hearing. Within fifteen (15) days after the hearing, the Order, Decision, or Award (ODA) of the labor commissioner will be filed in the DLSE office and served on the parties shortly thereafter. The ODA will set forth the decision and the amount awarded, if any, by the hearing officer. And within ten (10) days of service of an ODA, either party may appeal to the superior court.

MISTAKEN BELIEF

Some employers mistakenly believe that since the administrative conference and hearing held by the DLSE is considerably more informal than an actual suit being brought in state or federal court, that they do not have a right to counsel. This belief is erroneous. It is important to develop strategies and properly recognize all rules before partaking in a settlement conference or hearing held by the DSLE. Guidance and representation from counsel gives employers the best chance to defend themselves from such claims and to protect from future claims.

If you have any questions or concerns regarding a notice from the labor commissioner or any other employment related issues, please contact Garcia & Gurney, ALC.

 

Garcia & Gurney, ALC legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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