Can I file an overtime claim with the labor commissioner and also file a claim in superior court at the same time?

Asked almost 2 years ago - Los Angeles, CA

I'm not sure which venue would be faster, so can I file with both?

Attorney answers (5)

  1. Michael Robert Kirschbaum

    Contributor Level 20

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    Answered . No, you cannot do both. Generally, the Division of Labor Standards Enforcement (DLSE) is quicker and much less expensive than filing a lawsuit in Superior Court. If you do not have an attorney to represent you, you are better off in the DLSE. But neither process is perfect and your decision may be affected by how much is at stake, how complicated the issues are, whether the employer is represented by an attorney, etc. There are different levels of civil court, such as small claims, for cases under $10,000; limited jurisdiction courts for cases under $25,000; and superior court for cases over $25,000. If your claim is sizable, you should consult with an employment law attorney for advice.

    They say you get what you pay for, and this response is free, so take it for what it is worth. This is my opinion... more
  2. Neil Pedersen

    Contributor Level 20

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    Answered . You have received some good responses. I wanted to add a couple of thoughts.

    Generally, unless the employer appeals the DLSE decision, the Labor Commissioner's office approach is faster. However the there is a significant amount of money involved an employer will likely appeal the determination and that puts you in Superior Court anyway.

    If the amount in controversy is less than $10,000 you might consider small claims which would be faster than either.

    If you do not intend to hire an attorney, then the DLSE approach is far more prudent than a Superior Court lawsuit. The DLSE process was created with the idea that many employees would go that route without an attorney and there are far fewer places where you can lose by not understanding the process and procedure.

    Good luck to you.

    Pedersen Heck McQueen, APLC is an Irvine, California employee rights law firm assisting employees in all Southern California counties.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  3. David Andrew Mallen

    Contributor Level 14

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    Answered . A great question with no easy answers.

    You can start with the Labor Commissioner and then dismiss your Labor Commissioner complaint after hiring a lawyer to sue in court. But you can't do both.

    Ask yourself what you want from your case: Fast recovery? Maximum recovery? Payment of attorneys' fees?

    Also ask yourself whether you are capable of acting as your own advocate before the Labor Commissioner. In my experience, the vast majority of people who choose the Labor Commissioner would benefit from having an experienced lawyer as an advocate in the pre-hearing conference as well as the Labor Commissioner hearing before an Administrative Law Judge.

    Another point to consider: the Labor Commissioner can award overtime for a maximum of 3 years, whereas a Los Angeles Superior Court an award 4 years of overtime.

    Also consider this: When you hire a lawyer, the lawyer can send a letter requesting your payroll records and personnel file. That may trigger an immediate response from your employer and open possible settlement negotiations without filing anything in court or in front of the Labor Commissioners.

    These are just a few examples of why it makes sense to talk to an experienced employment lawyer who understands wage disputes and has "ridden this rodeo" before.

    Best regards,

    David A. Mallen
    310.895.0107

    David A. Mallen offers answers on Avvo as a public service, for general information only. This offer of free,... more
  4. Kristine S Karila

    Contributor Level 16

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    Lawyers agree

    Answered . No. I always recommend that employees who are owed overtime retain/hire an employment law attorney to attempt to settle the matter and if that does not work, to sue in Superior Court. That way, your attorney may be able to settle the matter quickly and if not, he/she can file a complaint in Superior Court. If you win in Superior Court, your employer must pay your attorneys' fees - and so, you generally get represented by counsel at no cost to you. You can't recoup attorneys' fees if you file a claim with the Labor Commissioner.

  5. Marilynn Mika Spencer

    Contributor Level 20

    2

    Lawyers agree

    Answered . I agree with the first two responses and write to add:

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

    The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.

    I hope you can resolve your situation and wish you the best.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your... more

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