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WAGE CLAIMS (2022)
Studies show that as many as 4 out of 5 employees are the victims of wage theft. If your employer owes you money, you have the right to immediately file a complaint with the California Labor Commissioner's Office (also referred to as the Division of Labor Standards Enforcement (DLSE) or, simply, the labor board) against your employer and have your case heard by a neutral California Labor Commissioner-appointed judge. The judge is authorized to issue a judgment against your employer awarding you unpaid wages, penalties, attorney fees and interest. The labor board does not charge any filing fees or other costs, nor does the labor board impose any penalties against employees who are unsuccessful in their complaint. California Labor Commissioner Lilia García-Brower has stated that she is committed to protecting the wage rights of undocumented or illegal immigrants. It is against the law for an employer to threaten employees based on their immigration status. It is also against the law for an employer to punish or retaliate against an employee for complaining about wage violations or filing a wage claim with the labor board.
Under California labor laws and the associated wage orders, employers are required to give non-exempt employees who work or reside in the State of California the following wage rights:
- - a 10-minute paid rest break if you work more than 3.5 hours in a day
- - a second 10-minute paid rest break if you work more than 6 hours in a day
- - rest breaks cannot be combined with other rest breaks or with meal breaks (with certain exceptions)
- - rest breaks must be uninterrupted and duty free
- - a 30-minute unpaid meal break if you work more than 5 hours in a day
- - a second 30-minute unpaid meal break if you work more than 10 hours in a day
- - meal breaks must be uninterrupted and duty free
- - employees must be permitted to start meal breaks no later than the end of the fifth and/or tenth hours into their shifts
- - time and a half if you work
- a) more than 8 hours in a day,
- b) more than 40 hours in a week, or
- c) seven days in a row in a work week
- - double time if you work
- a) more than 12 hours in a day, or
- b) more than 8 hours on the seventh day in a row in a work week
If you have been terminated or laid off, you are entitled to receive your final wages upon termination or on your last day of work.
If you resign, you are entitled to receive your final paycheck within 72 hours after your last day of work. However, if you provided at least 72 hours advance notice of your last day, the final paycheck must be provided to you immediately on your last day of work.
Your final wages must include any accrued but unpaid vacation pay (but not sick leave pay).
A manager or supervisor (even if part-time) is not legally allowed to take from your tips or the tip pool. The law treats this as tip theft.
Driving Mileage Reimbursements
If you are required to drive from your employer's office to a job site, your employer is required to pay you a mileage reimbursement at the IRS standard mileage rate. As of January 1, 2022, that rate is 58.5 cents per mile. Employees are also entitled to an award of attorney fees incurred in filing such a claim with the Labor Board.
Your employer is not permitted to take deductions out of your paycheck unless you have agreed to it in writing. Even if your employer has loaned you money, he cannot make any deductions without your written consent. If this is occurring, you are entitled to recover the moneys that were deducted.
If you complain to your employer or the labor board about any of the above wage violations, the employer is prohibited by law from retaliating against you. Retaliation could include a reduction of your work hours, demotion, pay cuts, suspension, termination, etc. If you are the victim of retaliation, you are entitled to file a separate retaliation complaint with the labor board.
FILING YOUR LABOR BOARD COMPLAINT (2022)
Filing a wage complaint with the labor board, can take as little as 30 minutes on the phone.
Even if you believe you are owed as little as a few hundred dollars, the penalties that apply under the California Labor Code and associated wage orders can be thousands of dollars. Penalties can include waiting time penalties, liquidated damages penalties, bounced check penalties, etc.
What You Need to File a Complaint
If you have any of the following documents, please have them ready when you call:
How Long the Complaint Process Takes
Resolving your wage complaint can take as little as a few weeks to as many as a few years. There are many factors involved, including how complicated your complaint is, how backlogged the commissioner and labor board branch office assigned to your case is, how willing your employer is to settle, whether your employer decides to appeal, etc. The labor board was already experiencing delays prior to the pandemic, but those delays have become significantly worse in the wake of the pandemic. The delays continue to this day. Your patience is appreciated.
The Steps in the Complaint Process
The first step in the wage complaint process is to fill out a Form 1 labor board complaint. You will typically need to also fill out a Form 55 attachment that sets out each amount you are owed for each pay period you worked for the employer. If you have a retaliation claim, you will also need to fill out a Form RCI-1.
If you need help with these forms, call us at (213) 992-3299 as the forms can be more complicated than they appear. Incorrect complaints are typically rejected by the labor board and need to be corrected before they can be re-filed. The re-filing process can take weeks or months. We can prepare the forms correctly for you in as little as a few hours.
In the above example, the claimant had submitted a complaint to the labor board that alleged only $1,274.97 in unpaid straight time and that lacked the required Form 55 calculation exhibit. After correction, an amended complaint was re-submitted that alleged $20,512.34 in unpaid straight time, overtime, meal and rest break premiums, liquidated damages, records penalties and waiting time penalties. In addition, required supporting calculation exhibits, including Form 55, were attached. The amended complaint package was accepted by the labor board.
Next, you need to file your complaint with the correct DLSE office. There are 18 regional DLSE offices assigned to the various cities in California (Bakersfield, El Centro, Fresno, Long Beach, Los Angeles, Oakland, Redding, Sacramento, Salinas, San Bernardino ,San Diego ,San Francisco ,San Jose ,Santa Ana, Santa Barbara, Santa Rosa, Stockton, and Van Nuys). Which DLSE office you apply to depends on which city you worked in. Again, this can be trickier than it first seems, as the office that is closest to the city where you worked isn't always the correct DLSE office to file in. Also DLSE office city assignments are subject to change. Filing with the wrong DLSE office can cause months of delay and often requires that you simply re-file your complaint with the correct DLSE office.
If you need help with this, give us a call at (213) 992-3299. We can ensure your complaints are filed with the correct DLSE office.
After your complaint is filed, you will receive a notice of conference from the labor board, typically in 3 to 12 months. At the conference, which you, your employer, and/or your attorneys are required to attend, the commissioner will ask questions, confirm information, and finalize your labor board complaint, which you will then sign. The conference also serves as an opportunity for the employee and employer to discuss settlement.
If there is no settlement, your complaint then proceeds to a final hearing or trial. Trials typically take place from 3 to 24 months after the conference. You may have to request subpoenas from the labor board and have them personally served on your employer and any necessary witnesses to ensure you have the evidence you need to win your trial. At trial, you must submit to the hearing officer or judge a copy of all documents and make available all witnesses required to prove your claim. Most employers will choose to have an attorney represent them at trial. Employees are not required to be represented by an attorney, but doing so is recommended.
The hearing officer or judge will issue their decision, called an ODA for "Order, Decision or Adjudication" within 15 days after the trial, but it will typically take up to a year for the decision to be mailed out to the parties. The parties will then effectively have 15 days to appeal the decision. If there is an appeal, the whole process starts completely over, except this time, your complaint is transferred from the labor board to a California State superior court (where the parties will have to pay court filing fees and other case-related costs, which can amount to hundreds, and in some cases, thousands, of dollars).
If you have won your trial and/or any appeal, and the employer refuses to pay, you will eventually be issued a formal court judgment. At that point, you must begin collection efforts on your own. The labor board may assist you with collection, although it varies by case.
If you need assistance with any of the above, give us a call anytime at (213) 992-3299 and we'll be happy to answer any questions.