If you are an employer trying to follow all the rules, getting notice of a wage and hour complaint filed by one of your employees with the DLSE can be frustrating. However, good preparation and a solid set of employer policies will usually help you win the day. If you're not familiar with the Department of Labor Standards Enforcement (DLSE), they are the state agency responsible for enforcing statutes related to wages, hours of work, working conditions and payment of overtime. Frequent wage-related complaints handled by the DLSE include nonpayment of wages at termination, underpayment of wages, nonpayment of overtime, and payments for missed meal and rest periods. Read on for some ways that employers have found to prepare them for a successful DLSE outcome.
Help Yourself There are many resources available to help you as an employer if faced with a DLSE claim. The DLSE has published their Enforcement Manual which provides instructions to their staff on the law involved in the issues to be decided. Reviewing this can help you understand how a hearing officer may decide a particular complaint. This is also a handy resource in analyzing your own policies for compliance. Keep in mind, this is not the final say in wage and hour law as the courts consider it only DLSE's interpretation of applicable law, but it helps put you in the same mindset of DLSE staff. In addition, the DLSE has posted opinion letters they have created on specific wage and hour issues, usually in response to an inquiry from an employer. Although the interpretations in the opinion letters are usually incorporated into the enforcement manual, they generally provide a more in-depth look into issues, and often address very specific situations that may be similar to what you encounter.
Policies, Policies A good set of policies showing an intention to follow applicable wage and hour law can go a long way. For instance, in a recent series of cases involving claims for missed meal breaks, we were able to be successful by showing that the policies in place, and communicated to employees, demonstrated a commitment to provide meal breaks to employees as required by law. Its always a good idea to review your policies that impact wage and hour issues, and update them as needed to track the ever-changing legal requirements. (For instance, with the Brinker case finally being heard by the Cal. Supreme Court, we'll see what changes may need to be made regarding meal and rest periods)
Other Good News With every complaint filed, the DLSE will review it to determine if it contains any merit. This often involves an initial conference with a Deputy Labor Commissioner in which each party can present their side of the story. Parties coming well-prepared to these conferences, with policies, pay records, and other documents to back them up, can often be successful in getting the claim dismissed at this stage. If the claim is not dismissed, the Deputy Labor Commissioner will provide some insight into how they see the issues, allowing you to get a feel for how a hearing may be determined. In addition, the conference provides an opportunity for the parties to come to a settlement. If there may be some liability, many employers can settle at this stage for far less than what an award at a hearing may be, and an employee will frequently jump at the opportunity to get a settlement right away.
Got Counsel? Labor Commissioner proceedings are less formal than court proceedings, and parties frequently appear without attorneys. However, the DLSE's mission is not to protect employer's interests, and the newly appointed Labor Commissioner, coming from a civil rights background, will definitely not be confused as being pro-employer. In addition, under A.B 240, beginning in 2012 the Labor Commissioner will have the authority to award liquidated damages in certain wage claims, an award previously available only in superior court. Usually, employees will not have attorney representation at the DLSE, but most employers feel more comfortable with experienced wage and hour counsel by their side to help frame the issues appropriately.