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Should I contact the Labor Commission or an Employment Lawyer?

Claremont, CA |

My former supervisor would withhold my lunch until all our work was complete (mine and hers). I would have to beg her to go to lunch on time and she ignored me. Several occassions I started my shift at 9 am and did not get a lunch break until after 4 pm. . My shifts were scheduled to be over at 6 pm everyday I worked. I also was not able to take a ten minute break on several occassions due to my supervisor not being available to cover me; we were the only two people there who could perform specific tasks.

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Attorney answers 4

Best Answer

You can use either the Labor Commissioner (Division of Labor Standards Enforcement or DLSE) or a private attorney. There is no way to know in advance which will provide you with a better result. There are so many variables!

Generally, if the value of your claim is high, an attorney will probably be a better choice. There are many reasons. One is that using an attorney may help move the case more quickly. However, assuming your case settles – and nearly all cases do – whatever you recover from the employer is likely to be in one lump sum, so the attorney will receive a percentage as a contingent fee. In this regard, you may receive less than you would otherwise.

That said, attorneys are often more diligent than the DLSE because they can devote more time to each case and diligence often results in a better result (more money).

But . . . if the employer is small and/or underfunded, it may have a limit in what it can spend on the case, or it may choose to go out of business rather than pay you.

Another consideration is how long you've worked for the employer. If you have worked more than three years, you should probably use an attorney because an attorney can pursue a claim under the unfair competition laws, which reach back four years. The DLSE can only go back three years.

Your best bet is to consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. See if you like any of them and what they asses your chances are, after they learn about the employer, length of employment and amount of the claim.

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 Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

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. ***



I was at the company for 8 months. Is hiring an attorney still my best option?

Marilynn Mika Spencer

Marilynn Mika Spencer


It doesn't hurt to consult with some attorneys. No one here on Avvo knows how much you made – which would affect how much may be owed to you, the employer's resources, or any details other than what you wrote. There is no reason to wonder. Talk to an attorney and find out if you have a case. It sounds like you probably do.


If your claim is substantial, it is often worthwhile to retain an attorney to represent you.

When you hire an attorney, and if you prevail in your case, you are entitled to recover your reasonable attorney fees and costs. Also, many attorneys (including my firm) do not charge any up front fees and will handle your case on a contingency basis. 213 201 9331.


If you an non-exempt employee, you are entitled to penalties for denials of meal and rest breaks. The penalty is one hour of pay per day when you are denied the opportunity to take a timely meal break. Similarly, the denial of rest breaks will also entitle you to one hour of pay per day when you are denied the opportunity to take timely rest breaks.

The Division of Labor Standards Enforcement provides an excellent guide on meal and rest breaks.

You can file a FREE online complaint with the Division of Labor Standards Enforcement at:

Finally, you can also ask an attorney to assist you and your legal fees may be recoverable under Labor Code 218.5.


If you are nonexempt (not a "professional," executive or if you did not regularly exercise independent judgment and decisionmaking) your employer was required to make available to you two 10 minute breaks in an 8 hour workday and one 30 minute duty-free meal period no later than 5 hours into your shift. Because that did not happen, if you were nonexempt, you and your co-worker may be able to get one hour of pay for each break and each meal period violation plus your employer will have to pay your attorney. Call an employment law attorney to discuss. 949-481-6909. You have the option of filing a claim with the Labor Commissioner, however, they will want you to settle for less than is owed and if they get the facts wrong and rule against you, you only have 10 days to appeal to Superior Court and you have to pay over $400.00 to do so. Hiring an attorney to take the case at no cost to you is the best option.