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Labor Commission proceedings are set up as streamlined, less formal proceedings, to allow employees the opportunity to pursue claims against their employers with minimal cost.  An employee is not required to be represented by counsel, and often times is not.  Here are the general steps required to obtain a resolution using the Labor Commission proceedings:

Step 1:  File the Complaint.

Step 2:  Attempt to Settle.  Following the filing of a complaint, a settlement conference is held, usually within 1-2 months.

Step 3:  Set a Date for the proceeding.  If the case is not resolved at the settlement conference, the Labor Commission proceeding is set and held typically within 2-3 months, and without the formal costly pre-hearing written discovery procedures used in a regular civil case.

Step 4:  Present Your Case.  While witness testimony and documentary evidence is presented at the proceeding, the rules of evidence are significantly relaxed, allowing the hearing to generally be completed within 1-2 days.

Step 5:  Defend Against an Appeal.  If the employee prevails, the employer may appeal the Labor Commission’s ruling.

Step 6:  Recover Your Attorney Fees.  Although attorney fees may not be awarded in the Labor Commission hearing, if the employee prevails and the employer appeals, the employer must post a bond for the award amount pending appeal, and the employee may recover his or her attorney fees incurred in successfully defending the appeal.

Here’s An Alternative – You Can File a Civil Complaint

An alternative to fling a complaint with the Labor Commission is to file a complaint or cross-complaint for wage and hour claims.

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Is filing a complaint a good option?

The benefit of a civil action is that the employee can recover attorney fees (attributable to the wage and hour claim), though the actual amount of the award is subject to court discretion and generally, a party will not be awarded all actual fees incurred.

Is filing a complaint a bad option?

The downside of proceeding via a complaint or cross-complaint is that the process is significantly more costly, longer and complex.  The

employer has the right to and generally will utilize the various discovery procedures permitted by the Code, and the rules of evidence are applied strictly, with witness testimony and documentary evidence required to meet certain admissibility standards.   Due to judicial resources / court congestion, most cases are being assigned trial dates approximately 12 months from filing of the complaint (and many, due to trial continuances, discovery disputes, etc., will ultimately be tried approximately 12-24 months from the filing of the complaint).

And the Winner Is … The Labor Commission!

Given the lower costs and speed of a Labor Commission proceeding relative to a civil complaint, we recommend proceeding with the Labor Commission route.  While non-appellate attorney fees are not recoverable, the proceeding would be concluded well before the pending civil case.  The early settlement conference in Labor Commission proceedings is also a strong benefit, as it could be used as an opportunity to settle the civil case at the same time, before discovery and other

litigation costs ramp up in the civil case.  Also, generally, Labor Commission cases are viewed as “pro-employee” relative to civil cases.

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