Frequently asked questions (FAQ)

1. An employee just sued me for a wage and hour violation. What should my first step be?

Your employee has probably just served you with an Initial Report or Claim. In the coming days, you will either receive a Notice of Claim Filed and Conference or a Notice of Hearing. Whether you are referred to the claims conference or a Labor Commissioner/Berman hearing, the wisest thing to do in the coming days is to consult with an employment attorney. They will inform you whether your strategy should be to mitigate or settle, and for how much. They will also know what exactly you need to bring to the conference and hearing in terms of documents and correspondence. Reference my e-book for a more detailed explanation of what you are required by law to do, and what you should do, during the beginning stages of a wage and hour lawsuit.

2. Can you represent me during the proceedings? If so, for how much?

Yes, you have the right to an attorney throughout the proceedings. I would be happy to represent you at the conference and the hearing. You can pay in a flat fee, ranging from $4,000 to $6,000, depending on the complexity and length of the case. This flat fee covers my fees for appearing in court, as well as any work for your case outside of your court. You can also elect to pay an hourly fee of $400 for any time I work on your case. If I worked on your case for half an hour in a day, I would bill you $200 for the day. If I appeared in the claims conference for four hours, I would bill you $1,600 for the day.

3. Can I represent myself? What rights do I have during the Hearing?

You can represent yourself, as is your right. However, I would suggest consulting with an employment attorney outside of court, to ensure that you have the best possible defense, with no flaws due to any missing evidence. You also have the right to submit and present evidences, introduce and question witnesses, and to have a translator present. Reference my e-book for a more detailed explanation of your rights during a Labor Commissioner Hearing.

4. What evidence, if any, do I need to gather?

In the weeks before the hearing, construct a timeline regarding the alleged violation. Gather any relevant documents, correspondence, and business records that have to do with the employee and the alleged violation. You should also bring copies of your employee policies and handbooks, for further proof. Evidence that usually cannot be entered in a civil trial, such as hearsay, may be admitted to the record. Admitting evidence such as hearsay will be up to the discretion of the hearing officer. Reference my e-book for a full list and more detailed explanation of what you need to gather.

5. Who’s in charge of the proceedings?

When your employee first fills out their Initial Report or Claim, the Labor Commissioner’s Office assigns the case to a Deputy Labor Commissioner. He or she is the one who decides whether the two parties will first meet for a claims conference, or will refer the case to be heard immediately at a Berman Hearing. At the claims conference, the Deputy Labor Commissioner will hear the facts and decide if the case has merit. The case will then either be dismissed, or the Deputy will decide that negotiations for a settlement will begin. The Deputy is also in charge of the leading negotiations. If the case goes to a Berman Hearing, a hearing officer will be assigned to your case. They act as a judge, and after considering the case presented to them, will issue an Order, Decision, or Award, or an ODA. The ODA will inform you and the employee if relief is being granted, and if so, how much. Reference my e-book for a more complete explanation on those in charge of your case.

6. Is there any way to appeal the decision?

After the ODA is issued, you may disagree with the decision or the amount of relief granted. If you’d like to appeal, you will have to fill out a Notice of Appeal from the Labor Commissioner’s Office. If your request for appeal is granted, a new hearing will take place in a superior court. This time, a judge will hear your case, and testimony from the Berman Hearing will be used as evidence. The judge’s decision from this hearing is considered final. Reference my e-book for a more complete explanation on the process of appealing a Labor Commissioner Hearing.

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