Labor Commission hearings and conferences should raise an immediate red flag for California and San Deigo employers. The California Labor Commissioner’s Office is committed to the “robust enforcement of labor laws.” If you or your company have received a “Notice of Claim and Conference,” a hearing notice or any other communication regarding the complaint of an employee you need to contact the Watkins Firm immediately for a free consultation at 858-535-1511. No California or San Diego employer should attempt to represent themselves before a California Labor Commission conference or hearing.
The Mission of the Labor Commissioner’s Office
The stated mission of the California Labor Commissioner’s Office is “to ensure a just day’s pay in every workplace in California.” The Labor Commissioner’s Office regular inspects San Diego employers and workplaces for wage and hour violations. When an employee files a complaint regarding unfair pay practices, retaliation, discrimination or other wage claim the Labor Commissioner’s Office will investigate the complaint and ultimately administer “economic justice.”
Wage Claims or Wage Theft in San Diego
The Division of Labor Standards Enforcement (DLSE) enforces all California labor laws, wage claims and wage theft allegations including wage and hour regulations and wage orders produced by the old Industrial Welfare Commission (IWC). While the IWC was technically de-funded in 2004 these wage orders still carry the force of law.
The Labor Commissioner and all Deputy Labor Commissioners are charged with conducting field audits, investigations, settlement conferences and “informal” hearings (note: there is nothing “informal” about these hearings). Staff attorneys support these Commissioners in their work.
If you are being investigated by the Labor Commissioner or the Department of Industrial Relations or have been contacted regarding a “conference” or “hearing” you need to contact the experienced employer defense attorneys at the Watkins Firm for a free consultation at 858-535-1511. It is not in your legal or financial interests to go through this process without expert representation.
California’s labor jurisdiction applies solely to “employers and employees.” They do not have jurisdiction over parties who have entered into a “bona fide contractor-independent contractor” relationship. However, the California Employment Development Department (EDD) and the Labor Commissioner are intensely focused upon 1099 workers and independent contractors – especially those who file claims with the agency. This will not stop either agency from conducting an audit to attempt to prove your independent contractors are actually “employees.” This opens your business to a much deeper exposure to heavy financial implications. There may be a valid defense for San Diego employers with employees who reside outside of and do not work within the State of California
Defending San Diego Employers in Labor Commission Hearings and Conferences
The DLSE must notify the parties within 30 days of the filing of a claim or compliant as to the agency’s intention to act on the claim. California’s Labor Code provides 3 alternatives:
- Accept the matter and conduct an Administrative Hearing (also known as a “Berman” Hearing)
- Prosecute a civil action for the collection of wages or other monies owed to employees
- Take no action on the complaint
Usually the agency provides the employer with a written notification of the wage claim and an opportunity to respond in writing. This is a strong opportunity to “nip it in the bud” and take immediate action to prevent further exposure. Contacting the Watkins Firm provides San Diego employers with sound counsel and advice and support in drafting an appropriate response. We are often successful with this response and a request for the agency to dismiss or take no action on the complaint. You can also simply pay the amount requested by the agency to resolve the claim. This is rarely in your best interest as it exposes you to visits from other labor related and tax agencies. California Labor Commission hearings and conferences allow a San Diego employer to defend against the false claims of employees, protect their financial interests and their reputation with the State of California.
Conciliation Conference or Settlement Conference
In many cases (but not all) the agency will schedule a “Conciliation” or “Settlement” conference. If you as the employer do not appear at the conference, the Deputy will generally schedule the matter for a formal hearing. When you appear with the Watkins Firm employer defense team the agency knows you intend to mount a substantive defense and you are much more likely to achieve a better outcome than if you appear on your own.
If the Deputy determines there is enough “arguable merit” to the claim, the Commissioner will immediately encourage settlement discussions. If a settlement is reached, release documents will be created upon completion of payment by the employer. If the dispute cannot be settled the matter is usually scheduled for a formal hearing before a different Deputy Labor Commissioner.
The deck is absolutely stacked against the employer in these conferences. The Commissioner will usually begin with an intense questioning of the employer’s understanding of California labor laws. This initial exchange is often enough to provide the Commissioner with the leverage needed to seal the employer’s fate and guide the process to a win for the employee.
With the Watkins Firm at your side, the outcome of these conferences are quite different. We work to provide the agency with overwhelming documentation, confirmation of consistent policies and procedures and other information ultimately leading to a request for dismissal.
Administrative Hearing or Berman Hearing
If the agency decides to move forward with the matter the Deputy Labor Commissioner will schedule and conduct an administrative or “Berman” hearing. This generally occurs within 90 days. The “Berman” hearing procedures are supposedly “informal” and timely guidelines to resolve the dispute. They are anything but informal. No San Diego employer should attend an Administrative or Berman Hearing without the representation of the Watkins Firm.
The “informal” hearing will include the testimony of witnesses and the introduction of documentation and other evidence. The experienced employer defense attorneys at the Watkins Firm mount a spirited defense to protect our clients from false claims and exposure to aggressive agency findings. The result of this hearing will be an “Order, Decision or Award” or ODA which contains a summary of the hearing and reasoning for the Deputy Labor Commissioner’s decision. If you wish to appeal this decision you have a very limited time frame (10 days).
The case must be appealed to the appropriate municipal or superior court and the case will be heard “anew.” If neither party takes action the ODA becomes a binding legal judgment which can be enforced by San Diego courts. This road from this point is uphill for most employers. If an employer wishes to appeal they must file a bond or make a cash deposit in the full amount of the award. Employees are not required to file a bond or deposit.
The Labor Commissioner will often provide free legal representation to employees who choose to fight the appeal of their employer. The losing party upon appeal must pay the opposing parties’ costs and reasonable attorney’s fees. However, the employer is only reimbursed if the appeal results in a zero dollar finding. For example, if the employer was ordered in the ODA to pay $35,000 and the appeal reduced this to $2,100 the employer would still have to pay the “successful” employee for their costs and attorneys fees.
Successfully Defending San Diego Employers in Labor Commission Conferences and Hearings
California Labor Commission hearings and conferences are anything but “informal.” They are designed to lull employers into a false sense of security opening them to substantial financial consequences. This is why it is so important to seek the experienced representation of the San Diego employer defense attorneys at the Watkins Firm. We aggressively represent our employer clients at every step of the process. We work for dismissal of the claim or closure at every juncture. We work to reduce or eliminate the financial exposure of our clients and provide sound advice and counsel through the entire process.
Employers without counsel do not have a successful track record in these matters. The Watkins Firm will aggressively defend your interests and reduce your exposure to financial liability. We invite you to contact us or call for a free consultation at 858-535-1511. Learn how we can protect you from aggressive Labor Commission proceedings.