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Should I file a claim against my former employer with the Department of Labor?

Los Angeles, CA |

Long story short:

Former employer discharged me in end of March when LA office closed (company is based in NY but I was working in LA). I'm owed approximately $10K in unpaid commissions (wages) that were earned 4-6 months ago. Have been requesting payment for over a month to no avail. According to my research, they've already violated NY & CA labor codes...

I was always taxed as a NY employee, despite living in LA. While I was previously a NY resident, the NY Dept of Labor told me this case is CA jurisdiction. Can anyone verify?

Should I pursue the matter with the California Dept of Labor? Is there a downside to that approach vs. hiring a private attorney? My primary concern, of course, is $$$. However, willing to listen to all suggestions. Thanks!

Attorney Answers 4

Posted

If you worked in California, the employer is subject to California labor laws as well as California tax reporting requirements. Given the amount of money owed, your best bet would be to file a complaint with the California Labor Commissioner, Division of Labor Standards Enforcement. It costs nothing to file and would probably be the quickest method of getting a resolution. Just make sure you have all your documentation together to prove the commission contract and the amount that is owed to you.

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.

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Asker

Posted

Thank you for the prompt response, Mr. Kirschbaum. Some people warned that the DLSE is understaffed, which could negatively affect cases. In your opinion, is that something I need to be worried about? Also, another attorney previously suggested that I pursue the matter with a lawyer to recover additional damages (and have my attorney fees covered by my employer). Doesn't that seem like a gamble?

Asker

Posted

Apologies for the double post. Just wanted to clarify that my work agreement has a Governing Law/Forum Selection Clause specifying NY.

Michael Robert Kirschbaum

Michael Robert Kirschbaum

Posted

I agree with the other attorneys that the contract needs to be reviewed for a true legal opinion. But if you worked exclusively in California, under direct control of this employer, it is very likely the DLSE will assume control. Would your chance of success be increased if you hire an attorney? Of course it would. And if you can get an attorney to represent you on a contingency basis, that would work well for you. Just know that most employers do not voluntarily pay your legal fees. To get them to pay your fees, it is almost certain you will have to obtain a judgment against them, in court, not through the DLSE, and have a judge award legal fees on top of the award. Over 90% of the cases settle. A settlement is a compromise of the claim. You will have to pay your attorney from the settlement, further reducing the amount you net. Some lawyers practice like this. If it sounds as though this works for you, try it. The DLSE has some good, hardworking deputies and some lazy ones. I have seen them get some very good results against employers but there are times when they drop the ball and don't do their job as well as they should. But it was set up to allow for relatively small cases that do not need the time and expense of a lawsuit and designed so that people can represent themselves, although attorneys are allowed. I have been there many times. Yes, it is understaffed. But so are the courts right now. Pick your poison. For a 10K case, I would chose the DLSE. If you can get a lawyer to write a demand letter, do that too.

Posted

Filing a claim with the CA Labor Commissioner's office is only an option. While free, it is a governmental agency - and thus, not the best option. IF you retain counsel to assist you in the Labor Commissioner hearing and/or settlement conference (the Labor Comm. office will want you to settle for less than is owed) you have to pay your attorney. However, if you have an attorney represent you by sending a demand letter to the company and trying to settle, if the company has willfully withheld wages/commissions, your former employer pays your attorney. It is best to have representation of counsel and if you have a good case, an employment law attorney will take your case at no cost to you. 949-481-6909.

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Asker

Posted

Thanks for your response, Ms. Karila. I forgot to add that my work agreement mentions NYS jurisdiction. A lawyer in LA I consulted with suggested pursuing the matter with the DLSE, presumably due to that clause in my contract. Does that seem correct?

Kristine S Karila

Kristine S Karila

Posted

The agreement needs to be analyzed as well as your duties. If you were an independent contractor, and not an employee (determined after an analysis of your tasks, control of the way you performed your work, etc.), the contract can dictate jurisdiction and you don't get the benefits of the CA Labor Code. If, however, it is determined that you were an employee working within CA, you get the benefits of CA labor laws and the company cannot take the jurisdication out of CA.

Posted

It strikes me that CA definitely has jurisdiction. Since you were discharged, you were owed all outstanding wages (commissions, vacation pay, and everything else) the day you were terminated. You may also be entitled to statutory penalties under Labor Code 203, and a recovery of attorney's fees under Labor Code 218.5.

You may wish to consider hiring a lawyer on a "limited representation basis" to help you when the going gets tough in your enforcement action. Some lawyers also may be willing to take the case on a contingency. The above commentary should convince you that a lawyer can add value to your case.

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Asker

Posted

Thanks, Mr. Perry. I forgot to include that my work agreement has a Governing Law/Forum Selection Clause specifying NY. Does that prohibit me from using an attorney in CA to pursue the matter? I consulted with one lawyer who recommended going through the DLSE for free without a lawyer, presumably because of that clause?

Charles Richard Perry

Charles Richard Perry

Posted

The clause does not prohibit you from using an attorney in California. If litigation occurred in NY, however, then you would need someone who is licensed there.

Posted

You should definitely hire an attorney. The Labor Commissioner in California is very serious about employers abusing former employees in this way and they will penalize him for doing same. Victoria Clemans, Esq. (310) 803-9111.

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Victoria L Clemans

Victoria L Clemans

Posted

I should add that the penalty will be favorable to you, and you will reap the award.

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