No, you cannot do both. Generally, the Division of Labor Standards Enforcement (DLSE) is quicker and much less expensive than filing a lawsuit in Superior Court. If you do not have an attorney to represent you, you are better off in the DLSE. But neither process is perfect and your decision may be affected by how much is at stake, how complicated the issues are, whether the employer is represented by an attorney, etc. There are different levels of civil court, such as small claims, for cases under $10,000; limited jurisdiction courts for cases under $25,000; and superior court for cases over $25,000. If your claim is sizable, you should consult with an employment law attorney for advice.
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.
No. I always recommend that employees who are owed overtime retain/hire an employment law attorney to attempt to settle the matter and if that does not work, to sue in Superior Court. That way, your attorney may be able to settle the matter quickly and if not, he/she can file a complaint in Superior Court. If you win in Superior Court, your employer must pay your attorneys' fees - and so, you generally get represented by counsel at no cost to you. You can't recoup attorneys' fees if you file a claim with the Labor Commissioner.
I agree with the first two responses and write to add:
To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.
The Division of Labor Standards Enforcement (DLSE) is a sub-agency within the California Department of Industrial Relations. http://www.dir.ca.gov/dlse/. Some people refer to the DLSE as the Labor Commissioner. The DLSE enforces California's wage and hour laws, including those pertaining to overtime, rest and meal breaks, and more. The link for information on filing a wage claim is here: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm.
I hope you can resolve your situation and wish you the best.
*** 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. ***
You have received some good responses. I wanted to add a couple of thoughts.
Generally, unless the employer appeals the DLSE decision, the Labor Commissioner's office approach is faster. However the there is a significant amount of money involved an employer will likely appeal the determination and that puts you in Superior Court anyway.
If the amount in controversy is less than $10,000 you might consider small claims which would be faster than either.
If you do not intend to hire an attorney, then the DLSE approach is far more prudent than a Superior Court lawsuit. The DLSE process was created with the idea that many employees would go that route without an attorney and there are far fewer places where you can lose by not understanding the process and procedure.
Good luck to you.
Pedersen Heck McQueen, APLC is an Irvine, California employee rights law firm assisting employees in all Southern California counties.
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.
A great question with no easy answers.
You can start with the Labor Commissioner and then dismiss your Labor Commissioner complaint after hiring a lawyer to sue in court. But you can't do both.
Ask yourself what you want from your case: Fast recovery? Maximum recovery? Payment of attorneys' fees?
Also ask yourself whether you are capable of acting as your own advocate before the Labor Commissioner. In my experience, the vast majority of people who choose the Labor Commissioner would benefit from having an experienced lawyer as an advocate in the pre-hearing conference as well as the Labor Commissioner hearing before an Administrative Law Judge.
Another point to consider: the Labor Commissioner can award overtime for a maximum of 3 years, whereas a Los Angeles Superior Court an award 4 years of overtime.
Also consider this: When you hire a lawyer, the lawyer can send a letter requesting your payroll records and personnel file. That may trigger an immediate response from your employer and open possible settlement negotiations without filing anything in court or in front of the Labor Commissioners.
These are just a few examples of why it makes sense to talk to an experienced employment lawyer who understands wage disputes and has "ridden this rodeo" before.
David A. Mallen
David A. Mallen offers answers on Avvo as a public service, for general information only. This offer of free, general answers is not intended to create an attorney-client relationship. If you need specific advice regarding the facts of your legal claim or the time limits for filing your claim, you should consult an attorney confidentially. Many experienced California labor and employment attorneys, including David A. Mallen, offer confidential, no-risk legal consultations at no charge. David A. Mallen is licensed to practice law before all state and federal courts in California, as well as the California Labor Commissioner and the California Unemployment Insurance Appeals Board. Failure to take legal action within the time periods prescribed by law could result in the loss of important legal rights and remedies.