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POLICIES AND PROCEDURES FOR WAGE
CLAIM PROCESSING


INTRODUCTION

The purpose of this pamphlet is to provide a basic overview of the Division of Labor Standards Enforcement's (DLSE) wage claim process and to outline the basic filing, conference, hearing and appeal procedures. Since this guide is not meant to be a definitive statement regarding the processing of wage claims, parties are strongly urged to read all forms received by them throughout the process. Failure to comply with each requirement of the process may result in the loss of important rights.

SUMMARY OF THE PROCEDURES

Any employee who has a claim against his or her employer or former employer for unpaid wages or other compensation, which falls under the jurisdiction of the Labor Commissioner, may file a claim with DLSE which is under the direction of the State Labor Commissioner. The Labor Commissioner has no jurisdiction over those persons determined to be bona fide independent contractors and only limited jurisdiction over employees of public agencies (for example, federal, state, county or municipal employees). In addition, based on California law and court decisions, the Labor Commissioner, in some cases, does not have jurisdiction over the wage claims of union members working under collective bargaining agreements.

The Labor Commissioner, pursuant to the provisions of Labor Code Sections 98 and 98.3, has established procedures for investigating wage complaints, which may include either a conference pursuant to Section 98.3 or a hearing pursuant to Section 98(a), or both.

Sometimes claims are filed which are very complex and involve a large number of employees and records. Such claims will usually be investigated by DLSE's Bureau of Field Enforcement and not through the procedures described in this pamphlet. If this occurs, the parties will be so informed by the deputy handling the case. However, the majority of claims filed with DLSE are resolved through Section 98.3 conferences and/or Section 98(a) hearings that are explained in this pamphlet.

FILING THE COMPLAINT

An employee (plaintiff) alleging the non-payment of wages or other compensation by his or her employer (defendant), must file a claim with a local office of DLSE to initiate investigation of the claim by the Labor Commissioner. The statute of limitations on claims is either two (2), three (3) or four (4) years from the date of the alleged non-payment, depending on the underlying employment agreement or the type of claim. Plaintiffs are advised to file a claim as soon as possible after the alleged non-payment.

When filing the claim, the plaintiff should provide as much information and documentation as possible, including the legal name, location, and status (method of doing business, i.e. sole proprietorship, partnership, corporation) of the defendant.

After the claim is assigned to a Deputy Labor Commissioner (deputy), he or she will determine, based on the circumstances of the claim, how best to proceed. Within thirty (30) days of the filing of the complaint, the deputy shall notify the parties as to the specific action which will initially be taken regarding the claim:

Not all cases will go to a conference before going to a hearing. Moreover, many cases will be resolved informally before either a conference or a hearing is scheduled.

THE CONFERENCE

THE HEARING

1. To be represented by an attorney or other party of his or her choosing.
2. To present evidence.
3. To testify in his or her own behalf.
4. To have his or her own witnesses testify.
5. To cross-examine the opposing party and witnesses.
6. To explain evidence offered in support of his or her position and to rebut evidence offered in opposition.
7. To have a translator present, if necessary.

1. Explain the issues and the meaning of terms not understood by the parties.
2. Set forth the order in which persons will testify, cross-examine and give rebuttal.
3. Assist parties in the cross-examination of the opposing party and witnesses.
4. Question parties and witnesses to obtain necessary facts.
5. Accept and consider testimony and documents offered by the parties or witnesses.
6. Take official notice of well-established matters of common knowledge and/or public records.
7. Ascertain whether there are stipulations by the parties that may be entered into the record.

 

APPEAL TO CIVIL COURT

Either party, or both, pursuant to Labor Code Section 98.2, may appeal the Labor Commissioner's ODA to the appropriate court, in accordance with the applicable rules of jurisdiction. The party appealing may obtain a Notice of Appeal (DLSE 537) from the DLSE office. The appeal must be filed in court within the time period set forth on the ODA, and a copy of the Notice of Appeal must be served on the Labor Commissioner and the opposing party. Whenever the defendant files an appeal, a bond in the amount of the ODA must be posted with the reviewing court. The court clerk will then set the matter for de novo hearing, which means that a judge will hear the case again with each party having the opportunity to present evidence and witnesses.

In the case of an appeal by a defendant, DLSE may represent a plaintiff who is financially unable to afford counsel in the appeal proceedings. The decision to represent the plaintiff is within the sound discretion of DLSE legal staff. The plaintiff must meet the financial criteria set forth by DLSE. The assigned deputy will send to the plaintiff a Request for Attorney Representation (DLSE 553) along with a Statement of Financial Status (DLSE 554) that must be completed and returned to the DLSE office. If the plaintiff does not meet the requirements for representation, he or she will be notified by the legal staff of the reasons that DLSE will not be providing legal representation.

 

State Labor Commissioner

(Revised 5-01)