We do not represent plaintiff clients in front of the Labor Commission (DLSE). The reason is because the Labor Commission is not governed by the same rules and laws as a normal Court of law. In addition, the Labor Commissioner who would hear your case is not a lawyer and does not have formal law training. Further, the Labor Commission process is much slower than we expect, and we do not have all the available tools at our disposal that we would have in regular court. (Is it a true statement for the current Labor Commission??)
The labor commissioner will decide wage claims and enforces the law. It does not act as an advocate for the employee. The labor commissioner typically have very good knowledge of wage and hour laws. However, if you prevail, you will not recover legal fees in the DLSE. In addition, the labor commissioner can only go back 3 years, while the state court can go back 4 years.
Employment / Labor Attorney
"We do not represent plaintiff clients in front of the Labor Commission (DLSE)." - true, the DLSE does not act as an advocate like a lawyer, it acts as a investigative and adjudicative body.
"The Labor Commission is not governed by the same rules and laws as a normal Court of law." - true. It is an administrative entity, not a judicial entity. When you have a wage claim you have the option of pursuing remedies through either an administrative process or a judicial process.
"The Labor Commissioner who would hear your case is not a lawyer and does not have formal law training." - true. As with many Administrative Law Judges the qualifications of the hearing officers for the Labor Commissioner's Office are qualified based on their years of experience and training in the particular area of law they are dealing with. While some ALJ's may have law school experience and some may have a J.D. or even a bar license, most do not.
"The Labor Commission process is much slower than we expect." - depending on the alternative selected, it may be faster or slower than other alternative ways to deal with the issue. One frustrating part of the DLSE process is that you can get all the way to the end of the process and receive a very positive outcome, and the employer can simply appeal that outcome to send you back to square one in superior court. However, the down-side to that is the employer often has to bond around the award, meaning that collection of your award is made far easier if you win the superior court appeal.
"We do not have all the available tools at our disposal that we would have in regular court." - true, because when you select the Labor Commissioner's Office you are trading some good and bad compared to a judicial remedy. The good is that it is an absolutely free process. It is a very good cheap way to get your issue reviewed and possibly resolved, often without the need to an attorney to represent you. It is a process set up to be employee friendly, meaning easy for an unrepresented individual to use. You give up some important and perhaps very valuable rights by going with the DLSE, so you need to weigh the specific issues of your case to determine if the DLSE is a realistically viable alternative or not. It is for many people.
Good luck to you.
This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.
4 lawyers agree
Employment / Labor Attorney
Mr. Pedersen gave you an excellent response to your question and Mr. Kane provided you with important information you didn't even ask about. I write to add a few more points.
First, if your case involves anything other than wage and hour issues, the Labor Commissioner has no jurisdiction (power to act) so cannot resolve those matters. In contrast, a court can handle all your claims at once. Yes, to be effective in court, you really need an attorney, but in most employment law cases, ultimately the attorney's fees are paid by the employer for most claims you can bring, providing you are successful.
Second, you cannot recover more than three years of damages via the Labor Commissioner but you can recover up to four years in court, as Mr. Kane mentioned. This is because in court, your attorney can pursue your wage claim through an unfair business practices claim, which has a four year statute of limitation (time limit). The Labor Commissioner is not able to do accept an unfair business practices claim.
Finally, the Labor Commissioner does provide attorneys to complainants (effectively, plaintiffs) in one limited circumstance: If the claimant wins his or her case before the Labor Commissioner, AND if the employer appeals the case to court, AND if the claimant is unable to afford his or her own attorney, the Labor Commissioner will provide an attorney. However, the attorney is really there to maintain the decision of the Labor Commissioner. The purpose doesn't matter because if the claimant won before the Labor Commissioner, maintaining the award most often ends up with the same result you could get in court anyway.
@MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. * * * Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. * * * No attorney-client relationship is created based on this information exchange. * * * Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis.