We are open for business, though working remotely, during the COVID-19 outbreak. You can still reach us through our office phone during normal business hours. Much, if not all, of our representation can be done remotely.

(805) 641-6600
Free Consultation

The procedure after filing a wage claim when involving independent contractors.

Let’s say you decide to file a wage claim in regards to the issue of being an independent contractor or an employee. Once you file your claim with your local Labor Commissioner’s Office, a Deputy Labor Commissioner will be assigned to your case. The Deputy Labor Commissioner will examine your claim and the information you present and will decide how to proceed. The Deputy Labor Commissioner may refer the claim to a conference or hearing, or may dismiss your claim if there is a lack of substance or validity.

If the Deputy Labor Commissioner decides to hold a conference, both parties will be contacted by mail of the time, date and place of the conference. A conference is held to decide if your claim is legitimate and if the issue can be settled. If your claim is not resolved in the conference or it is not dismissed, a hearing will be held. Hearings are recorded and the parties involved will have to testify under oath.
Following the hearing, an Order, Decision or Award will be served by the Labor Commissioner. If you or the opposing party is unhappy with the Order, Decision or Award, an appeal may be filed with the civil court. The court will set a date for a trial. You and the opposing party will collect and present evidence and witnesses at the trial. The information presented at the hearing will not be the basis of the court’s decision. If your employer appeals the decision, the Division of Labor Standards Enforcement may represent you if you cannot afford representation.

Example:

Joe believes that he may be an employee. His employer says that he is an independent contractor and doesn’t pay Joe overtime. Joe decides to file a wage claim with the Labor Commissioner’s Office. Once Joe files a wage claim in California, a Deputy Labor Commissioner is assigned to his case. The Deputy Labor Commissioner examines Joe’s wage claim and the information Joe presented. The Deputy Labor Commissioner then decides how to proceed by either dismissing Joe’s claim or by holding a conference or hearing. The Deputy decides to hold a conference to see if an agreement can be reached between Joe and his employer. Joe and his employer are both be notified by mail of the date, place and time of the conference.

At the conference, Joe and his employer will discuss the situation and if an agreement is not reached, the Deputy Labor Commissioner will schedule a hearing.

At the hearing, both Joe, his employer and any witnesses will testify under oath and the hearing will be recorded. Joe and his employer will both present evidence and any witnesses to help each of their sides of the claim.

After the hearing, Joe and his employer will be notified by the Labor Commissioner of an Order, Decision or Award. If Joe or his employer is not satisfied by the Labor Commissioner’s decision, they may appeal the Order, Decision or Award to a civil court.

If Joe or his employer appeals to civil court the Labor Commissioner’s decision, the matter will be set for trial. At the trial, Joe and his employer will present evidence and witnesses. The evidence and testimonies that occurred in the hearing will not be the basis of the court’s decision. If Joe’s employer files the appeal and Joe cannot afford counsel, the Division of Labor Standards Enforcement may represent him. Joe can also consult with an attorney who specializes in employment law. He may recover his attorneys fees and costs if he wins his appeal.

If you have a question about California employee or independent contractor law or want to file a wage claim in California, contact us now.

2 comments

  1. Confidential

    My employer misclassified me as an Independent Contractor instead of an employee for 4 years of employment. I was never paid overtime, given breaks, or vacation pay during this time. Beginning in 2020 he changed me to an employee to avoid any complications with the law. He then fired me a few months later. I believe I am owed unpaid overtime for the duration of my employment. My employer also owes back taxes owed for me which were never paid. There are many other concerns I have with this claim and need to know how to properly make a wage claim.

    1. Persons who have been misclassified as independent contractors have various claims they can bring against their employer. Their claims can go back as far as four years. If you bring your claim before the Labor Commissioner, the maximum claims period is 3 years, measured backward from the date you file your case. If you file in court, however, you may be able to go back as far as four years. The types of claims a misclassified independent contractor can bring include those that any employee could bring, such as for unpaid overtime, denied meal breaks, denied rest breaks, unpaid commissions, defective paycheck stubs, and/or unpaid vacation wages. They can also bring a claim for penalties for the employer’s misclassification of the employee as an independent contractor. That claim for penalties, however, only goes back one year. Time is of the essence, so you should contact us immediately, so we can evaluate your claim and determine your proper course of action.

XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>