Skip to main content

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

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

Posted

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 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.

Mark as helpful

1 found this helpful

7 lawyers agree

3 comments

Asker

Posted

Marilynn, both of your leaps of assumptions based on my use of the word "disgruntled" are grossly misplaced. I have no problems with wage and hour disputes as a standard. In fact, we have been in business for almost 10 years and have only had three. You are also very much incorrect that "I don't take them seriously" and I'm confused what mentality or logical path is required to make such an accusation based on my sentence. My question was very simple... of the three we have had in the passed decade, I noticed that a very few employees attempt to use the DoL to extort small companies but even worse... I have no idea (or any member of my staff for that matter --including HR) that an employee has an issue or complaint until you get big white envelope from the DoL. I asked my HR Director what was the point of drafting and paying all those legal fees to develop a grevance policy when employees are free to ignore them at will... the best I could get was, "it was for the employees who prefer professional conduct over governmental manipulation." My question still is unanswered... I was not specifically seeking a law... I deistically remember reading within the California Department of Labor Code and Regulations Procedures Manual that employees we required to make "attempts" (I would assume in good faith) to resolve issues prior to filling a claim. I just can't find it again... if you don't know where it is... just say as much... please don't attempt to critic my leadership from a paragraph... I have no doubt you're both better than that.

Asker

Posted

Mr. Pedersen Thank you for the intelligent and insightful feedback. I suspect that what I recall reading may have been more of an encouragement to the employee than a requirement.

Asker

Posted

Mr. Peterson, thank you for your insightful thoughts. This particular case has a twist. Without too many details, this employee abruptly terminated employment, which seemed EXTREMELY odd considering her was clearing an average of 4k-5k a month in commissions, above his base and as a full-time college student. I could only wish I did that well for myself. During his out brief, his reasons for departure were vague and disingenuous, but we didn't push the issue... He's free to work for who he wants... We had only hoped to improve on some shortfall. In any event, I ordered his last commission payout to be generated. Now, typically monthly commissions are calculated by the dispatcher (who closes Work Orders that generate Invoices, that a percentage of profit of which the salesperson gets). However, final payouts must be reviewed by the accountant. The thought process being, if errors are made the sales staff tends to utilize the grievance policy (which includes the accountant) but avoid overly burden the accountant with scrubbing EVERY commission report. But with those who have quite, we find they would rather use the free (well known biased) system of the DoL to force us to figure what his complaint is (trust me, the "craola on toilet paper complaint descriptions the DoL passes to us are almost worthless). To avoid that, the accountant signs off on the final. In this case, it was brought to my attention that this individual was very likely fraudulently minipulating the dispatch system to bring almost all his payout to the maximum allowed. Naturally, he could not have done it without the dispatcher... Either she was in on the scam or grossly negligent. I've known the person for years... She would never knowingly do something to hurt the company. I struggled if I should terminate her... But she was so embarrassed that it was happening right under her nose, she resigned. I argued to the board that we not sue for damages, but let her move on. Then it became clear why the salesman quite, all our clients operate in quarterly rotation. He was bound to be caught when the Tech chief went to the same job site and discovered the first service was closed prior to completion. A classic "grab and dash". Since that employee never contacted us directly, we assume he is unaware that uncovered his scam. The board insist I give him the same opportunity to walk away (I was out voted). But if he pushes the DoL issue..we sue in Fed and forward to prosecutors for criminal investigation. If he forces us to the point, how does it impact the DoL? I'm told it's put on hold. Personally, I'd rather prosecute... At least then my insurance bond will pay back some of the loss and damage my accountant had dug up... Which is tipping 60k

Posted

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.

Mark as helpful

7 lawyers agree

Posted

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 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. ***

Mark as helpful

6 lawyers agree

Posted

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 based on very limited information. My opinion should not be taken as legal advice. For true advice, we would require a confidential consultation where I would ask you questions and get your complete story. This is a public forum, so remember, nothing here is confidential. Nor am I your attorney. I do not know who you are and you have not hired me to provide any legal service. To do so would require us to meet and sign written retainer agreement. My responses are intended for general information only.

Mark as helpful

1 found this helpful

5 lawyers agree

6 comments

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Very well stated.

Asker

Posted

Very poorly stated, ignorant as to the my reality and very presumptuous on your part. I served in the Marine Corps for over 15 years and started as a private chipping paint of the side of a curb worked my way up to Captain Commanding troops in combat. I existed for one purpose and one purpose only... my troops. I cary that same mentality to the private sector... as the CEO of my company I exist for one reason and one reason only... to make my employees job easer and more efficient so that their productivity results in profits to the board. As I said, your comment is clearly biased, based on you isolated profession, but it was even less helpful. We have multiple office staff of some of the best people... what I have found is that for every 10 good employees who just want to do a good job and help a company to succeed you have one employee who performs poorly and finds a willing avenue to exploit small companies through extortion supported by the DoJ. I actually had a poorly performing salesman who performed so bad I had to figure out how he could do so poorly (seriously... you had to try to be this bad). I found out that he was also a real-estate agent and spent his week days pitching real-estate while claiming to be working for us. He was terminated, of course, and demanded his last weeks pay. I demanded that he prove that he was at lease ONE CLIENT location that week and I would pay him for the whole week.... JUST ONE... he couldn't do it..so filled a claim. I was told my only option was to fight in a biased labor board (my cousle reminding me it's called "the Labor Board ..not the Employment Board" or pay the guy to make him go away. I allowed him to rob me of a weeks pay... stop assuming the employer is the problem and if you have an answer to my question, I welcome it.. otherwise... save your time.

Asker

Posted

Correction... not DoJ... I meant DoL... spell autocorrect aside.

Michael Robert Kirschbaum

Michael Robert Kirschbaum

Posted

Talk about biased? Your view of the Division of Labor Standards Enforcement, as it is correctly called, is a neutral agency. It is not pro-employe or pro-employer but I can understand why you perceive it as you do. Look, I have chosen to represent hard working employees for a reason. Time and time again, I have seen too many employers take advantage of and abuse people who only want to do their job, and support their families without being treated like they are in the military. I have nothing against the military mentality in the right time and place. My father and brother were both in the Corps and proud of it. But most employees have not been and do not deserve to be treated like they are your troops. They are people who have lives outside of your business, and want to be respected and feel like their jobs have value. But you are right, I don't know you and I don't know anything about the people who have filed claims against you, or whether they have merit or not. I only see what you wrote, on a public forum, which invites a public response. And based upon your initial and follow-up angry response, you have not changed my opinion of what it must be like to work for you. I am sure you served our country with honor and were dedicated for protect the Constitutional principles for which we all cherish, perhaps the most cherished of which is the freedom of expression. When you go on a public forum such as this, rather than attack a person who expresses an opinion you do not agree with, take a step back and try to respect why that person feels differently than you. You might learn something.

Asker

Posted

Mike….. Stop... You're embarrassing yourself. Having family members that served in the Corps adds absolutely no validity whatsoever to thoughts or opinions on the issue of the Corps, nor does it provide you any credibility to proffer any comments or opinions about life or sacrifice to someone who lived it…. I know plenty of African American people, but I’m not ignorant or arrogant enough to presume some since of insight. The sad part is you selectively picked a solitary word in my question, written in genuine curiosity in search for knowledge, and drew a completely biased conclusion derived from absolutely no knowledge of the facts or circumstances of this case and used this same “lazy logic” approach…. not to provide useful feedback, which was what was actually sought…. but instead to make a post hoc ergo propter hoc attempt to critique me as a business person. I guess you assumed I was born rich or a business owner... perhaps I never worked for minimum wage putting myself through college. Maybe you assumed I’ve never been forced to file a complaint at the DoL for mistreatment at a dead-end job... you would be incorrect on all counts. Mike, you’d be better off by stopping communication on this question, as you clearly have nothing constructive or intelligent to add. Besides, others of your peers have done an EXCELLENT job educating and advising me of questions to ask my counsel as well as the employment counsel I hire (if such be necessary)… and I thank them for that. Lastly, even as an employee (which I am, regardless of my position) if I had a complaint I would certainly desire someone more objective to advice me legally, if I should find I have a problem with my current employer. If history has proven one thing to me, if you have a legal counselor with a blind agenda or tendency to act on preconceived notions… his client can very well be left looking like a fool.

Marilynn Mika Spencer

Marilynn Mika Spencer

Posted

Asker, Mr. Kirschbaum is a highly-respected attorney among both the plaintiff and defendant side of the bar. He is well-known for his integrity and insight, and is admired for being a straight-shooter. Many employers have saved themselves a world of trouble by listening to his guidance.

Business topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics