Filing a Wage Claim with the California Labor Commissioner

Overview

Employees in California who believe they have not been paid all wages owed to them have the option of filing a wage claim with the California Labor Commissioner's office, formally known as the Division of Labor Standards Enforcement (DLSE). This administrative process - commonly referred to as a "Berman hearing" after the statute that established it - provides an alternative to filing a civil lawsuit in court.

The Labor Commissioner handles a wide range of wage and hour claims, and the Berman hearing process is designed to be accessible to individuals who may not have legal representation.

This guide provides a general overview of the wage claim process. It does not constitute legal advice.

Types of Claims the Labor Commissioner Handles

The Labor Commissioner accepts claims for a variety of wage and hour violations, including:

• Unpaid wages (including minimum wage violations)
• Unpaid overtime
• Meal and rest break premium pay
• Unreimbursed business expenses
• Unpaid commissions or bonuses
• Waiting time penalties for late payment of final wages
• Wage statement (pay stub) violations
• Vacation pay owed at termination
• Bounced paychecks (returned checks)
• Deductions from wages that are not authorized by law

The Labor Commissioner generally does not handle claims for discrimination, harassment, or retaliation under FEHA (those are handled by the CRD), although certain retaliation claims related to wage and hour complaints may fall within the Labor Commissioner's jurisdiction under Labor Code Section 98.6.

Who Can File

Any employee - or former employee - who believes they are owed wages may file a claim. An employee does not need to be represented by an attorney to file a wage claim. The process is designed to be accessible to individuals representing themselves.

How to File a Wage Claim

Step 1: Complete the Claim Form

The employee files a wage claim by completing and submitting the appropriate form - known as an Initial Report or Claim (DLSE Form 1) - to the Labor Commissioner's office. The form may be filed online, by mail, or in person at a DLSE district office.

The claim form requires information including:

• The employee's name and contact information
• The employer's name, address, and contact information
• A description of the wages owed and the basis for the claim
• The time period covered by the claim
• Supporting documentation (such as pay stubs, timesheets, or employment records)

Step 2: Initial Review

After the claim is filed, the DLSE conducts an initial review to determine whether the claim is within its jurisdiction and whether it states a valid basis for relief.

Step 3: Settlement Conference

In most cases, the DLSE will schedule a settlement conference (also called a conference hearing) before a Deputy Labor Commissioner. At this conference, both the employee and the employer (or their representatives) have an opportunity to present their positions and attempt to reach a voluntary resolution.

The settlement conference is informal. The Deputy Labor Commissioner may ask questions, review documents, and facilitate negotiation between the parties. Many claims are resolved at this stage.

Step 4: Berman Hearing

If the claim is not resolved at the settlement conference, it proceeds to a Berman hearing - a formal evidentiary hearing before a hearing officer. The Berman hearing functions like a simplified trial:

• Both sides may present testimony and documentary evidence
• Witnesses may be called and examined
• The rules of evidence are relaxed compared to court proceedings, but the hearing is conducted under oath
• The hearing officer issues a written decision called an Order, Decision, or Award (ODA)

Step 5: The ODA

The hearing officer's ODA sets forth the amount of wages (and any applicable penalties) owed to the employee, or dismisses the claim if it is not established. The ODA includes findings of fact and conclusions of law.

Step 6: Appeal

Either party may appeal the ODA by filing an appeal in the Superior Court within ten (10) days of the date the ODA is served. An appeal results in a trial de novo - meaning the court hears the case from scratch, without deference to the DLSE's findings.

If the employer appeals and does not obtain a more favorable result in court, the employer may be required to post an undertaking (bond) and pay the employee's attorneys' fees and costs on appeal.

Statute of Limitations

The time limits for filing a wage claim depend on the type of claim:

These deadlines are measured from the date the violation occurred. Claims filed after the applicable limitations period may be barred.

Advantages and Limitations of the Wage Claim Process

Potential Advantages

• Accessibility. The process is designed for employees without attorneys. There are no filing fees.
• Speed. The administrative process may be faster than filing a lawsuit in court, though timelines vary by district office and caseload.
• Informality. The Berman hearing is less formal than a court trial, which may be more comfortable for unrepresented claimants.
• Enforcement. If the employer does not pay an ODA, the Labor Commissioner may assist with collection efforts, and the employee may pursue enforcement through the courts.

Potential Limitations

• Complexity. More complex claims - such as those involving class-wide violations or large amounts of damages - may be better suited to court litigation or Private Attorneys General Act (PAGA) claims.
• Limited discovery. The administrative process does not provide the same discovery tools (depositions, interrogatories, document requests) available in court litigation, which may limit the employee's ability to obtain evidence from the employer.
• Appeal risk. If the employer appeals, the case proceeds to a trial de novo in Superior Court, effectively restarting the process.

Alternative Remedies

Employees are not required to file a wage claim with the Labor Commissioner. They may instead choose to:

• File a civil lawsuit in court (including small claims court for claims within its jurisdictional limit)
• Pursue a PAGA claim on behalf of themselves and other aggrieved employees
• Participate in a class action lawsuit

The appropriate avenue depends on the nature and scope of the claims, the amount at issue, and other strategic considerations.

Conclusion

The California Labor Commissioner's wage claim process provides an accessible avenue for employees to recover unpaid wages and related penalties. While the process is designed to be simpler and more accessible than court litigation, it involves specific procedural steps and deadlines. Employees considering filing a wage claim - and employers who receive one - may benefit from consulting with a qualified employment law attorney to understand their rights and options.

This guide is provided for general informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is created by reading this material. Laws and regulations may change, and the application of law depends on the specific facts of each situation. Consult a qualified attorney for advice regarding your particular circumstances.