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HR Disciplines California Overtime Violations FAQ - Why do I need an attorney when I can just file an overtime claim with The California Labor Commission?

HR-Consultant 2012.07.07 23:39 Views : 651

Why do I need an attorney when I can just file an overtime claim with The California Labor Commission?

The California Labor Commission handles claims for unpaid wages, overtime, and other labor violations through the Division of Labor Standards Enforcement (DLSE), also known as the "Labor Board." Before you file with the Labor Commissioner, however, you should be aware that they cannot protect all of your rights, and your actual claim could likely be a lot more with the help of a California labor attorney than what the Labor Commissioner could possibly award you.

Also, unless you are working under the terms of a written employment contract that provides for overtime, the Labor Commissioner can only get you unpaid overtime going back three years. An attorney can assert your right to go back four years. The reason for this is that the Labor Commissioner can only enforce California Labor Law. Under California Labor Law, the Statute of Limitations for unpaid overtime is three years. But under a different section of the law that covers unfair business practices, you can recover unpaid overtime going back four years.

Furthermore, an experienced wage and hour attorney will help you to sue for civil penalties for all labor violations committed by the employer. This means that even if you have a small claim, you can sue for penalties for all the violations in the company. You get to keep 25 percent of the penalties awarded and the State of California will get the other 75 percent. Not only are these penalties often substantial; they also provide an excellent way to get employers to comply with the California labor laws by providing an incentive to sue. These laws can be used very effectively against employers who violate the California labor code.

I won a significant amount at the Labor Commission, but when can I get my overtime money from my former employer?

Even if you do win at the Labor Commission, the employer can still appeal that decision, and the more you are awarded, the more likely your employer will appeal. At this point, your case goes to court and it is in your best interest to get an attorney. In addition, you don't get your money until you win the appeal in court, which means you may be waiting a long time to get anything by going to the California Labor Board.

I am paid on commission so I don't get paid overtime, right?

Wrong. Many commissioned workers are entitled to overtime. You are not entitled to overtime if you are an outside salesperson, or if you work in retail sales and at least half of your total earnings come from commissions and you make at least 1 1/2 times the current minimum wage. If you work in sales other than retail, however, such as a loan officer or a stock broker, you are most likely entitled to overtime.


SOURCES

The California Department of Industrial Relations (www.dir.ca.gov/dlse/faq_overtime)
Workforce Software (www.workforcesoftware.com/resources/ca)
LawyersandSettlements (www.lawyersandsettlements.com/case/overtime_california.html)
Legal Aid Society (www.las-elc.org/)
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