Boss was underpaying me for over a year as a salaried exempt employee. Supposed to pay me at least twice the minimum wage, but did not do so. Boss owes me for over 500 hours of overtime, as well as for lunches & breaks, since I was actually being paid as a non-exempt employee. Any statististics showing greater success either way? Thank you for your time
If you are owed unpaid wages, overtime, etc., the law requires your former employer to pay your attorney's fees (as well as their own) which is usually a great incentive to pay up quickly. That law only applies if you do NOT file your claim before the DLSE/Labor Commissioner. Also, an employment law attorney can go back 4 years to collect unpaid wages; the DLSE can only go back 3 years. The DLSE is and has been backlogged and it can take 1 year or more to get a conference and/or hearing date at many locations. That problem is much worse now because of office closings due to the pandemic. A well written demand letter from an experienced employment law attorney may be your best strategy to getting paid efficiently. If you are no longer employed by the employer who owes overtime, etc, you can also get 30 day's waiting time penalties, interest, etc. Call an employment law attorney to discuss the pertinent facts: Duties, rate of pay, dates/hours worked, amount owed, etc. Many of us take unpaid wage cases, overtime claims and meal/break penalty cases at no out of pocket cost to the employee. Find contact info on Avvo.com.
The Labor Commissioner's Office is set up as a way for employees to have some power to recover wages and other things owed to them caused by a violation of the Labor Code. It is a good place to go if the amount of money in controversy is relatively small and uncomplicated.
The people who work as the "judges" in that process are pretty good at the easy cases. The more complicated the issues or the damages, the less qualified they tend to be.
There is no filing fee for filing in this process, and you can usually go through that process without an attorney if the case is simple and small.
If you "win" in the process, you get an award that needs to be enforced. An employer is not required to participate in the process, and can, if it wishes, simply ignore that process, wait for an award, and then file a document seeking a trial in superior court where everything starts over again from scratch. The prior findings of the DLSE are not given any weight in the superior court lawsuit. However, the employer who loses in the DLSE action is required to post a bond in order to appeal, meaning that at least there is a ready source of recovery if you prevail in the superior court action.
You can have an attorney in the DLSE process, and in the more complicated or larger matters that makes sense, but you do not have a statutory right to recovery your attorney fees from the other side in this process.
Finally your rights in the process are limited to claims arising out of violation of the California Labor Code. That means you cannot bring a claim for Unfair Business Practices in the DLSE action.
By filing right away in superior court, some of the advantages are:
1. The time savings that can occur by avoiding the whole administrative claim process only to be sent to superior court anyway.
2. Superior Court judges are usually (but not always) much better in dealing with large and/or complex matters, and if they get it wrong, you have a right to appeal.
3. You can raise any legal claim you have, not just violation of the Labor Code, which means, among other things, that you can make an Unfair Business Practice claim if the failure to pay you correctly was a business practice, extending the statute of limitations an additional year longer than if you were in the DLSE. For long term employees this can be a very significant advantage.
4. In Superior Court, you can seek a statutory right to force the other side to pay your attorney fees for the fees you incur in forcing the employer to pay what is yours. This helps you in several ways. First, the spectre of having to pay your fees is a significant motivation to pay your earlier and more than if in the DLSE process. Second, the right to fees is more scary that you might think. The attorney gets to ask not just for their fees at their normal hourly rate, but they get to ask for a multiplier on their fees to compensate them for the risk of taking the case on a contingency fee basis and advancing costs. The amount becomes a very significant motivator to settle higher and quicker. Third, because competent and aggressive attorneys can get paid good money to take these cases, you will find many more attorneys willing to handle your case for you if the matter is in superior court.
5. Although you should have legal counsel to take the case to superior court, the same is true for the employer, meaning additional leverage exists to create settlement pressure because they will be writing checks to defense attorneys which they can avoid by settling with you. This may not be true for some employers in the DLSE process.
At the very least it would make sense for you to locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options.
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.
The only con that I can think of that an attorney will charge you fee.
The pros are numerous:
1. An attorney can first help you evaluate your claims for their strengths and weaknesses, which almost every claims has. This will help you have realistic expectations on one hand and not shortchange yourself on the other hand.
2. An attorney can help you negotiate pre-hearing settlement more effective.
3. Having an attorney present at the pre-hearing conference will send a message to the employer that someone will be fighting for you and the have a real risk of losing at DLSE or even having that case filed in court if you and your attorney choose to do so.
Generally, if your claim is modest (under 10k or even under $5k) than it might be worth having at least a consultation with an attorney and then deciding whether you can bring your claim to conclusion yourself. If your claim is more significant, then having representation is highly recommended.
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