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What can I expect at my conference with the labor commission and my former employer? What should I know before attending?

Downey, CA |

I worked for my former employer for 8 months. During the course of those 8 months I was on a regular basis sent to lunch for an hour after working 6-7 hours straight also without any rest breaks. I have only a few copies of timecards that support my statement and also written statements from former coworkers (2) that also support my claim. I also have former coworkers who if subpoenaed would be willing to testify on my behalf. My supervisor also held the same title as myself and thus we were the only two who could perform certain tasks. My super was on a regular basis (at least 3-4 days a weeks) in hour long meetings, celebrating upper management birthdays in and sometimes out of the building, and she also did not let me leave until all work was completed. How strong is my case? Advice?

Attorney Answers 3

Posted

The first meeting with the Labor Commissioner will be an attempt by the Labor Commissioner employee to try to get you and the employer to settle for less than what is owed. If it doesn't settle, there will be a hearing where you have to prove your case by testifying, having witnesses testify, producing documents, etc. Your case is only as good as your evidence and the clarification by which you present it at the hearing. The employer will be able to show any evidence which goes against your claim by their witnesses, documents, etc. If you were a nonexempt employee, you were entitled to take at least a 30 minute meal break after 5 hours of work and two 10 minute paid breaks - assuming you worked an 8 hour day. The law is that the employer must give employees the opportunity to take meal/breaks, the employer is not required to monitor/babysit to make sure the employee takes them. Filing a claim with the Labor Commissioner is only one option and one that I don't advise if the employee has a good case and the employer has money to pay the claim. The reasons are that the employees at the Labor Commissioner office can get the facts and the law wrong and if so, you only have 10 days to appeal to Superior Court and you have to pay over $400 to do so. Also, an employment law attorney can, most times, get you what is owed, plus monetary penalties (meal/break violation penalties and waiting time penalties) PLUS your former employer, by law "shall" pay your attorney her/his fees - but not if the claim is before the Labor Commissioner. So, if you hire an attorney and dismiss your claim before the L. Commissioner so that your attorney can handle it, you get free legal representation and you don't have to represent yourself. After receiving a demand letter from an attorney, the employer may want to settle. There are tactics that attorneys have which usually help convince the employer to settle right away or face a costly lawsuit. I suggest that you call an employment law attorney to discuss.

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Posted

I generally agree with my colleague's answer. However, to clarify, in a legal proceeding to collect unpaid wages or penalties, the prevailing or winning party is entitled to their reasonable legal fees under Labor Code 218.5. Thus, if the employer prevails, the employee may liable for the employer's legal fees.

There is an important exception. In legal proceedings to collect unpaid minimum wages or overtime only, a prevailing employee can collect their reasonable attorney's fees under Labor Code 1194. If the employer prevails, the employer still cannot recover their reasonable legal fees.

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Panda Lynn Kroll

Panda Lynn Kroll

Posted

I was curious about the attorney fee (one-sided or shifting) and looked this up: Note that the CA Supreme Court set to rest debate on this issue in its May 2012 decision in Kirby v Imoos Fire Protection, which reversed a decision awarding fees for a prevailing employer on a rest break case. Paradoxically, although the decision was bad for the employer in that its attorneys' fee award was reversed, the result is ultimately a boon to California employers because the decision precludes prevailing plaintiffs from using section 218.5 (or 1194) to recover attorneys' fees in connection with meal and rest break claims. This drives down the incentive for plaintiffs in connection with such suits. They may try to utilize PAGA or California Code of Civil Procedure section 1021.5's private attorney general theory as means to recover fees on these claims, but these avenues are not without hurdles.

Posted

Your post does not describe your job duties, but it does suggest that your duties were the same as the person you called your supervisor. This raises the red flag in my mind that perhaps you were properly characterized as an exempt employee, meaning your employer had no duty to extend the opportunity for breaks. If that is the case, you have no case.

It would make sense to consult with an employment attorney to get your paperwork and arguments in order. You can share your job responsibilities with that attorney and get a good idea of the strength or weakness of your case.

I suggest you locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

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.

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