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Do-it-Yourself Recovery of Unpaid WagesHow to Represent Yourself Beforethe California LaborCommissionerA Publication of:The Legal Aid Society-Employment Law Center600 Harrison Street, Suite 120San Francisco, CA 94107(415) 864-8208 (Phone) : (415) 864-8199 (Fax)www.las-elc.org1

Do-it-Yourself Recovery of Unpaid WagesHow to represent Yourself Before the California Labor CommissionerThis packect provides only general information about wage claims anda step-by-step explanation of the process to recover wages beforethe California Labor Commissioner. If you need more specific adviceabout your claim, you should consult an attorney.This packet was updated in 2004. The Labor Commissioner proceduresor the law itself may have changed since that date. These changes mayaffect your claim. For up-to-date information, consult an attorney.2

Do-it-Yourself Recovery of Unpaid WagesHow to Represent Yourself Before the California Labor CommissionerTABLE OF CONTENTSINTRODUCTION 4WHAT DO I DO FIRST?I.Calculating a claim 4II.Demand payment before filing a claim 6III.Filing a wage claim 7FILING A WAGE CLAIMSTEP 1: Can you file with the Labor Commissioner? 9STEP 2: Filing the Claim 12STEP 3: What Happens After I File the Claim Form? 14STEP 4: Pre-Hearing Conference with You and Your Employer 16STEP 5: Changing the Complaint Between the Conference and theHearing 20STEP 6: Notice of Hearing 21STEP 7: Preparing for the Hearing 21STEP 8: The Hearing 26STEP 9: Decision of the Labor Commissioner 35STEP 10: Appealing the Labor Commissioner’s Decision 36STEP 11: Collecting your Judgment 37STEP 12: Paying Income Taxes 373

INTRODUCTIONThis packet provides information to workers who are trying to collect unpaidwages from their employers. If you are not sure whether you were paid correctly,you should first look at the “Wage and Hour Fact Sheets” that have beenpublished by the Unemployment and Wage Claims Project (you will find acomplete list of available fact sheets in the appendix). These fact sheets shouldhelp you determine whether or not you are owed wages and, if so, how much youcan recover. If you do not have the fact sheet that addresses your claim, pleasecall the Coordinator of Direct Services at (415) 864-8848 ext 263 for additionalassistance. The fact sheets can also be accessed online athttp://www.las-elc.org/factshtinvent.html.If you determine that you have not been paid correctly, you are ready to takeaction against your employer (this action may include filing a formal claim). Thispacket describes the different steps you should go through to collect thoseunpaid wages.WHAT DO I DO FIRST?I. CALCULATING A CLAIMIf you have already calculated your wages, continue to “DEMANDPAYMENT BEFORE FILING A CLAIM,” below.A. How do I figure out exactly what I am owed?All wage claims are different. Although this packet cannot provide you withprecise instructions on calculating the exact amount of your claim, theinformation contained in the Wage and Hour Fact Sheet that applies to yourtype of claim (list of fact sheets in the Appendix) should help you figure outhow much you are owed. For most wage claims, the best way to calculateyour claim is to follow the five steps below:1) Check the time limits that apply to your claimThere are time limits that apply to every claim for unpaid wages. See“Time Limits,” below, to determine whether your claim for wages is stillvalid and how far back you can go to claim wages.2) Estimate the number of hours you workedDo your best to fill out a calendar with all of the hours you worked duringthe time you are claiming. Include all the hours you worked, even if youwere paid. Remember, you only have to do this to the best of your ability.4

Your records and your memory do not have to be perfect, but you shouldtry to be as accurate as possible to convince the Labor Commissioner youare telling the truth.3) Identify your regular rate of pay and/or your overtime rate (ifapplicable)After you have a good idea what hours you worked, identify how much youshould have been paid for those hours. To do this, you normally have tofigure out your “regular rate of pay.” For most workers, the regular rate ofpay is simply their hourly wage. If there is no agreement on how muchyou should be paid, your regular rate is the minimum wage at the time youperformed the work (See “Minimum Wage” fact sheet for moreinformation). If you work on salary, commission or piece rate, you willhave to calculate your hourly wage (See “Overtime” fact sheet for moreinformation on calculating your regular rate if you work on salary).If you are claiming overtime pay, you should calculate your overtime rateof pay (which can be either 1.5 or 2 times your regular rate of pay,depending on the hours you worked). For more information, see“Overtime” fact sheet.4) Multiply the hours you worked times the legal rate of payCalculate the wages you should have been paid by multiplying the numberof hours you worked times your regular rate of pay and/or your overtimerate. This total gives you the amount you legally should have been paid.5) Subtract the wages you actually receivedAfter you have calculated what you should have been paid, subtract theamount you actually received. The amount you actually received is listedon your pay stubs. If you do not have a pay stub, you can find out howmuch you were paid from your employer’s records, which you have theright to see. The difference between what you should have been paid andwhat you were actually paid equals the wages you should claim.The Labor Commissioner will often ask you to submit a worksheet with yourclaim showing how you calculated the money you are owed. Try your best tocomplete this worksheet as accurately as you can.This method of calculation is different for reimbursements, deductions from pay,commissions, bonuses and certain other wage claims that are not directly relatedto your hours of work.If your claim is more simple, for example if your employer simply withheld ormade mistakes on one or two paychecks, you can calculate your claim basedonly on the amount that you think should have been included in those paychecks(you do not have to complete a calendar of all of the hours you have ever workedfor your employer).5

II. DEMAND PAYMENT BEFORE FILING A CLAIMIf you have already sent a demand letter, continue to “FILING A WAGECLAIM,” belowOnce you have determined that you are owed wages, it is normally best to try andrecover them without filing a claim against your employer. The best way todemand your wages is to send your employer a demand letter, which is a simpleletter explaining that you are owed money and what you want to collect. Beforeyou send any letter to your employer, make a copy of the signed letter for yourrecords.A. Why send a demand letter?The demand letter is useful for a number of reasons: (1) You can avoid thetrouble of filing a claim or a lawsuit if your employer gets the letter, realizesthat you were paid incorrectly and pays you the money you are owed. (2) Ifyou still work for your employer, the letter gives you some protection againstretaliation. Since it is illegal for your employer to fire you or take other actionagainst you for demanding your legally protected wages, the demand letter isyour proof that you asked for those wages. (3) If you no longer work for thecompany, the demand letter will help your case for “waiting time penalties” byshowing that your employer continued to avoid payment of your final wageseven after you asked for the money. (See “Getting Your Final Paycheck” factsheet for more information about waiting time penalties.)B. What should I say in my demand letter?Your demand should notify your employer that you are requesting unpaidwages. Although the letter does not need to be detailed, it should includeyour best estimate of the amount of money you are owed, the type(s) ofwages you are claiming, and instructions for payment.Sample demand lettersThe appendix to this packet contains two sample demand letters that youcan use to help write your own demand letter. The first sample is forworkers who no longer work for their employers and includes a demandfor waiting time penalties. The second sample is for workers who are stillemployed with the company that owes them wages.6

III. FILING A WAGE CLAIMIf your employer refuses to pay your wages, even after you have sent a demandletter, you can take legal action against your employer to collect those unpaidwages. You can take legal action in either of two (2) ways:(1) You can file a lawsuit in court (see below for more information about theproper court for your claim), or(2) You can file a claim with the Labor Commissioner (the process isdescribed in detail throughout this packet).A. Who exactly is the Labor Commissioner?The California Labor Commissioner’s office, officially called the Division ofLabor Standards Enforcement (DLSE), is the California government agencythat has the authority to investigate and enforce California’s wage laws toensure that workers are paid according to the law. The Labor Commissionerhas two separate branches that handle different kinds of wage claims.Complaints about a problem that involves a large number of workers shouldgo to the Labor Commissioner’s Bureau of Field Enforcement. Individualclaims should be filed at one of the Labor Commissioner’s Wage ClaimsOffices.The Labor Commissioner has set up the Wage Claims Offices to receiveworker complaints and attempt to resolve those complaints through aninvestigation and/or a hearing. (See appendix for a complete listing ofNorthern California Labor Commissioner offices).Note regarding workers without papersAll workers have the right to be paid for their work. People who workwithout papers (“undocumented workers”) are covered by all ofCalifornia’s wage laws. The Labor Commissioner will accept claims filedby undocumented workers and should not ask you about your immigrationstatus. If the Labor Commissioner finds out that you do not have papers,it is not supposed to report this information to immigration. For moreinformation about the Labor Commissioner’s policy for undocumentedworkers, go to the Labor Commissioner’s website at:http://www.dir.ca.gov/dlse/DLSE-Feature.htm.B. How do I choose whether to go to court or to the LaborCommissioner?If your wage claim is for less than 5000, you can choose to go to eitherSmall Claims Court or the Labor Commissioner. The Labor Commissioner’sprocess may take a little longer than Small Claims Court. On the other hand,the Labor Commissioner’s office, which is staffed by people who haveexpertise in wage claims, may be more likely to understand your claim than a7

Small Claims Court Judge. For example, a small claims court judge may notknow that workers who lose their jobs are often entitled to waiting timepenalties as well as interest on unpaid wages, but the Labor Commissioner isvery aware of this law. Also, you can bring a lawyer or another representativewith you if you go to the Labor Commissioner. Lawyers are not allowed inSmall Claims Court.The following chart explains the main differences between the LaborCommissioner and small claims and can be used to help you decide where tofile your claim:DLSESpecializes in handling wage claimsand more likely to understand lesscommon lawsMay bring advocate or lawyer toassist in processNo maximum amount of claimSMALL CLAIMS COURTJudges may not have particularexpertise handling wage claimsNo lawyers permittedClaim must be no more than 5,000(you can choose to file in SuperiorCourt for larger claims)Approximately 1-2 months tocomplete processApproximately 6-8 months tocomplete processIf your claim is for more than 5000, you can still choose to file a lawsuit or goto the Labor Commissioner. However, if you choose to file a lawsuit, youhave to file in a larger state court, known as Superior Court. Because theLabor Commissioner’s process is simpler than court, larger claims are usuallyeasier to pursue at the Labor Commissioner, with or without a lawyer. If youchoose to go to court, it is often best to have a lawyer on your side whounderstands all of the court’s procedures. You will normally have to pay thatlawyer.Although it may be helpful to retain a lawyer to help you at the LaborCommissioner, the Labor Commissioner’s process is designed to allowworkers to bring claims on their own.This packet is designed to help workers who do not or cannot hire a lawyer toassist them with their claims at the Labor Commissioner.8

FILING WAGE CLAIMS WITH THELABOR COMMISSIONER:FROM INITIAL CLAIM TO HEARINGThe remainder of this packet describes the process you will go through if youchoose to pursue your wage claim before the Labor Commissioner. It providesexplanations and examples that should help you decide how much to claim andwhether to settle a claim before the process is over. If you decide not to settleyour claim (usually for less than you think you are owed), this packet discusseshow to present your case at a formal hearing to recover wages. The timeline onthe previous page gives you an idea how long each step in the process is likelyto take.STEP 1: CAN YOU FILE WITH THE LABORCOMMISSIONER?A. Are there limits on the type or amount of wages I can recoverthrough the Labor Commissioner?Yes. The Labor Commissioner handles only certain types of wage claims,and the Labor Commissioner will only accept wages that were earned withincertain time limits.1. What types of claims does the Labor Commissioner accept?The most common claims that the Lab