Requirement by California DoL that employee attempt to resolve a issue before filling a complaint.

Asked over 1 year ago - Vista, CA

I have an employee that filed a "Pay Dispute" complaint with the Department of Labor. I remember reading someplace that the employee is required to make a legitimate attempt to resolve an issue prior to filling a complaint. I have found that the DoL has made it so easy for a person to complain that I get packages in the mail about complaints that disgruntled employees have filed and I (nor any member of my staff) have any knowledge or record of existing. We have a grievance policy, but some find it easer to just file a complaint rather than attempt to resolve the issue with the company properly. Does anyone know what code that is that requires an employee to at least attempt to resolve a dispute prior to filling complaints in California?

Attorney answers (4)

  1. Neil Pedersen

    Contributor Level 20

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    Answered . While an employer can have certain internal policies that require as much, those internal policies generally are not allowed to trump the Labor Code or other legal protections available to the employees. There are no requirements in the law for an employee to attempt to resolve a wage and hour dispute with the employer before seeking administrative or judicial remedies.

    If the employee seeks relief through the DLSE, also known as the Labor Commissioner's Office, that entity will usually provide a forum for a settlement conference before the administrative hearing is set.

    If the employee complaint is a violation of the Fair Employment and Housing Act, or one of several federal statutes administered by the EEOC, the employer must first file an administrative complaint with the DFEH or EEOC and procure a right to sue letter before filing a lawsuit. However, there is no requirement that they first bring the complaint to the employer either.

    I believe there are no such requirements because it reduces the chance of retaliation by bad employer. Furthermore, given the grossly disparate levels of power in the employer/employee relationship, the protective statutes do not want to create any barriers whatsoever for the employee to overcome to make a complaint. A requirement that the employee speak to the employer before being allowed to seek assistance would be a great disincentive for many employees to seek protection elsewhere. The fear of retaliation is a strong motivating factor.

    Your company may well be entirely good-intentioned and would never consider becoming an impediment to such filings, but the laws are there to protect all employees, and there are many employers out there who would not think twice about discouraging or even outright threatening employees to prevent them from going to a government agency, especially where the employee comes from a culture where the government is feared, or where the employee has work status issues.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  2. Kristine S Karila

    Contributor Level 16

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    Answered . There is no requirement that an employee attempt to resolve his/her issues before filing a claim with the DLSE, FEHA or the courts. I suggest that you contact an employment law attorney to discsuss the employees' issues to help you resolve them so that you don't incur further surprises, costs and possibly penalties or even your employees' attorneys' fees if they choose to retain counsel and/or if they file a complaint in Superior Court.

  3. Marilynn Mika Spencer

    Contributor Level 20

    6

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    Answered . Ms. Karila and Mr. Pedersen are correct. No law requires an employee to attempt to resolve a wage and hour dispute before contacting the Division of Labor Standards Enforcement. Your best practice would be to retain an experienced business or employment law attorney who can review your policies, practices and procedures to make sure you are complying with all required laws.

    Your reference to "disgruntled employees" indicates you do not take your employees' wage and hour complaints seriously, and believe the only motivation for filing these complaints is the employees' bad attitude. Anyone who is underpaid or paid improperly would be understandably unhappy, and in such a case. Employees are not required to advise employers on their employers' violations of law or errors. The employer has the legal obligation to pay employees in accordance with law.

    If your company pays employees in accordance with the law, and complies with reporting and contribution requirements, then you need not worry about reports to the DLSE. The DLSE does not find fault where it does not exist.

    twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the... more
  4. Michael Robert Kirschbaum

    Contributor Level 20

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    Answered . Your post is very telling about how you view your employees. As an employee rights attorney, I can tell you that when I hear from multiple employees who complain about the same employer, it is usually for a good reason. You may wish to categorize them as disgruntled employees but this indicates either you are not very selective with the kind of employees you hire or there is some something very wrong with how your employees are being treated.

    Many of us advise clients who come to us with wage and hour issues to try to resolve the problem with the employer first, before resorting to legal action. But many feel uncomfortable doing so because they either fear their manager or owner or do not believe an open door policy is truly sincere. It indicates poor communication.

    Rather than trying to focus on a technicality to defend against these claims, some more basic internal changes need to be made to avoid being hit with such claims. I agree that you should establish a relationship with an attorney who advises employers on how to improve employee morale and take proactive steps to avoid future claims. The cost of such a relationship will end up being much cheaper than having defend your company, win or lose.

    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

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