POLICIES AND PROCEDURES FOR WAGE CLAIM PROCESSING

INTRODUCTION The purpose of this pamphlet is to provide a basic overview of the Division of Labor Standards Enforcement's (DLSE) wage claim process and to outline the basic filing, conference, hearing and appeal procedures. Since this guide is not meant to be a definitive statement regarding the processing of wage claims, parties are strongl urged to read all forms received b them throughout the process. Failure to comply with each requirement of the process may result in the loss of important rights. SUMMARY OF THE PROCEDURES !n emplo ee who has a claim against his or her emplo er or former emplo er for unpaid wages or other compensation, which falls under the "urisdiction of the Labor #ommissioner, ma file a claim with DLSE which is under the direction of the State Labor #ommissioner. The Labor #ommissioner has no "urisdiction over those persons determined to be bona fide independent contractors and onl limited "urisdiction over emplo ees of public agencies (for e$ample, federal, state, count or municipal emplo ees). %n addition, based on #alifornia law and court decisions, the Labor #ommissioner, in some cases, does not have "urisdiction over the wage claims of union members wor&ing under collective bargaining agreements. The Labor #ommissioner, pursuant to the provisions of Labor #ode Sections '( and '(.), has established procedures for investigating wage complaints, which ma include either a conference pursuant to Section '(.) or a hearing pursuant to Section '((a), or both. Sometimes claims are filed which are ver comple$ and involve a large number of emplo ees and records. Such claims will usuall be investigated b DLSE's *ureau of +ield Enforcement and not through the procedures described in this pamphlet. %f this occurs, the parties will be so informed b the deput handling the case. ,owever, the ma"orit of claims filed with DLSE are resolved through Section '(.) conferences and-or Section '((a) hearings that are e$plained in this pamphlet. FILING THE COMPLAINT !n emplo ee (plaintiff) alleging the non.pa ment of wages or other compensation b his or her emplo er (defendant), must file a claim (the DLSE Form 1, Initial Re ort or Claim! form) with a local office of DLSE to initiate investigation of the claim b the Labor #ommissioner. /hen filing a claim, the plaintiff should provide as much information as possible on the 0%nitial 1eport or #laim2 form, including the legal name, location, and status (method of doing business, i.e. sole proprietorship, partnership, corporation) of the defendant.

!long with the completed 0%nitial 1eport or #laim2 +orm, plaintiffs should also submit these additional DLSE +orms i" an# o" t$e "ollo%in& 'it(ation' a l#3 DLSE Form )) (if the plaintiff4s wor& hours or da s of wor& varied per wee& or were irregular and the plaintiff is see&ing unpaid wages or premium pa for meal or rest period violations) DLSE Form 1)) (if the claim involves commission pa ) DLSE *a+ation Pa# S+$e,(le! (if the claim involves vacation wages)

%n addition, along with the completed 0%nitial 1eport or #laim2 form, the plaintiff should submit ONE COPY of the following documents in support of the claim, if the plaintiff has these documents (DO NOT '(-mit ori&inal ,o+(ment')3 Time records the plaintiff &ept of the hours and dates wor&ed that support the claim. 5a chec&s and pa stubs showing the wages paid during the claim period. Dishonored (or 0bounced2) pa chec&(s) during the claim period. 6otice of emplo ment information (pursuant to Labor #ode Section 7(89.:, a notice from the emplo er that emplo ees ma have received after ;anuar 8, 7987, which indicates the emplo ee4s basic emplo ment information including rate of pa , an overtime rate of pa , whether the emplo ee was paid b the hour, shift, da , wee&, salar , piece, commission, or otherwise, and the regular pa da ).

NOTE: It is the employers legal responsibility to keep accurate employee time and payroll records, and to provide employees with itemized wage statements each time they are paid or at least semimonthly!" In order to #ile a claim, employees are not re$uired to keep their own time records or to have the documents above" These documents are being re$uested only i# employees have them because they may help %&'E better understand the claim" #ollective *argaining !greement (if the plaintiff4s emplo ment was covered b a union contract).

!fter the claim is assigned to a Deput Labor #ommissioner (deput ), he or she will determine, based on the circumstances of the claim, how best to proceed. /ithin thirt ()9) da s of the filing of the complaint, the deput shall notif the parties as to the specific action which will initiall be ta&en regarding the claim3 referral to a conference referral to a hearing dismissal of the claim

6ot all cases will go to a conference before going to a hearing. <oreover, man cases will be resolved informall before either a conference or a hearing is scheduled. THE CONFERENCE

%f the decision has been made b the deput to hold a conference, a 6otice of #laim +iled and #onference will be sent to both parties which will describe the claim, provide the date, time and place of the conference, and direct the parties that the are e$pected to attend. The conference will be conducted informall and the parties will not be under oath. The purpose of the conference is to determine if the claim can be resolved without a hearing. 5laintiffs are not re=uired to prove their case at the conference. The parties should be prepared to tal& with the deput about the claim, including whether there are an witnesses. ,owever, the parties do not need to bring witnesses to the conference. 5laintiffs should bring a cop (not the original) of an document that supports the claim, but should not bring documents that have alread been submitted with the claim form. Defendants should also bring an documents that support their position. %f the defendant fails to appear at the conference, in most cases, the claim will be scheduled for a hearing. %f the plaintiff fails to appear, e$cept for good cause shown, the claim will be dismissed. %f the case is not resolved at the conference, the deput will determine the appropriate action with regard to the claim, usuall referral to a hearing or dismissal (if there is not a legal basis to proceed). %f the defendant ma&es pa ment of the claim, or an part of the claim, directl to the plaintiff, the plaintiff must notif the deput . %f the pa ment satisfies the claim in full, the case will be closed. The plaintiff ma withdraw the claim, b written re=uest to the deput , at an time during the process. %f a hearing is scheduled (either after the claim is filed or after a conference), the parties will receive, either b mail or b personal service, a 6otice of ,earing which will set the date, time and place of the hearing. !lthough hearings are conducted in an informal setting, the are formal proceedings, as opposed to the conference. !t the hearing the parties and witnesses testif under oath, and the proceedings are recorded. Each part has the following basic rights at the hearing3 8. To be represented b an attorne or other part of his or her choosing. 7. To present evidence. ). To testif in his or her own behalf. >. To have his or her own witnesses testif . :. To cross.e$amine the opposing part and witnesses. ?. To e$plain evidence offered in support of his or her position and to rebut evidence offered in opposition. @. To have a translator present, if necessar . The hearing officer has sole authorit and discretion for the conduct of the hearing

THE HEARING

and ma 3 8. E$plain the issues and the meaning of terms not understood b the parties. 7. Set forth the order in which persons will testif , cross.e$amine and give rebuttal. ). !ssist parties in the cross.e$amination of the opposing part and witnesses. >. Auestion parties and witnesses to obtain necessar facts. :. !ccept and consider testimon and documents offered b the parties or witnesses. ?. Ta&e official notice of well.established matters of common &nowledge and-or public records. @. !scertain whether there are stipulations b the parties that ma be entered into the record.B Cou should bring all documents that will support our position. !n emplo er who intends to introduce business records into evidence should also bring a person to the hearing who can e$plain how such records were prepared. I" a.aila-le, t$e ori&inal' o" all ,o+(ment' '$o(l, -e -ro(&$t to t$e $earin& l(' t%o 'et' o" +o ie'/ %f ou wish witnesses to testif , ou ma arrange for the witnesses to attend voluntaril or ou ma re=uest issuance of a personal subpoena to compel their attendance. Subpoenas for documents, records or witnesses must be issued b the Labor #ommissioner. !pplications to the Labor #ommissioner for issuance of subpoenas should be made at least fifteen (8:) business da s prior to the date of the hearing. Submit a written re=uest, using %nformation for Subpoena (DLSE :?>) stating the reasons ou feel the documents, records or witnesses are relevant or necessar . #osts incurred in the service of a subpoena, witness fees and mileage will be borne b the part re=uesting the subpoena. #hanges in the date, time or place of the hearing will not be granted e$cept upon the showing of e$traordinar circumstances. The decision to grant such a re=uest is within the sole discretion of the hearing officer and senior deput , and will be rare. %f the plaintiff fails to attend the hearing, the case will be dismissed. %f the defendant is served with a notice of hearing and fails to attend the hearing, the hearing officer will decide the matter on the evidence he or she receives from the plaintiff. The hearing officer is not bound b formal rules of evidence and therefore, has wide discretion in accepting evidence. ,e or she also has discretion in deciding whether the assessment of penalties is appropriate in a particular case. /ithin fifteen (8:) da s after the hearing, the Drder, Decision or !ward (DD!) of the Labor #ommissioner will be filed in the DLSE office and served on the parties shortl thereafter. The DD! will set forth the decision and the amount awarded, if an , b the hearing officer.

APPEAL TO CI*IL COURT Either part , or both, pursuant to Labor #ode Section '(.7, ma appeal the Labor #ommissioner's DD! to the appropriate court, in accordance with the applicable rules of "urisdiction. The part appealing ma obtain a 6otice of !ppeal (DLSE :)@) from the DLSE office. The appeal must be filed in court within the time period set forth on the DD!, and a cop of the 6otice of !ppeal must be served on the Labor #ommissioner and the opposing part . /henever the defendant files an appeal, a bond in the amount of the DD! must be posted with the reviewing court. The court cler& will then set the matter for de novo hearing, which means that a "udge will hear the case again with each part having the opportunit to present evidence and witnesses. %n the case of an appeal b a defendant, DLSE ma represent a plaintiff who is financiall unable to afford counsel in the appeal proceedings. The decision to represent the plaintiff is within the sound discretion of DLSE legal staff. The plaintiff must meet the financial criteria set forth b DLSE. The assigned deput will send to the plaintiff a 1e=uest for !ttorne 1epresentation (DLSE ::)) along with a Statement of +inancial Status (DLSE ::>) that must be completed and returned to the DLSE office. %f the plaintiff does not meet the re=uirements for representation, he or she will be notified b the legal staff of the reasons that DLSE will not be providing legal representation. State Labor #ommissioner (1evised 9?.87)