At this point in the process, one of two things should have already happened since the wage claim was filed by your employee. Either the Deputy Commissioner has asked that both parties to the action attend a Labor Commissioner Hearing. Or a claims conference was found to not be sufficient enough to resolve the claim. If you have received a Notice of Hearing, then you have been notified of the date, time and location of your upcoming Berman hearing.
This also means that you have been served a copy of the official complaint, which gives you 10 days to answer. This answer should include details of what your defenses might be against the complainant and I would strongly suggest that you hire an attorney to assist you in preparing the DLSE Answer Form. Failure to present your answer in a timely fashion may result in you no longer being allowed to defend yourself at the hearing.
While still not required, it is your right to be defended by an attorney at the hearing. It is strongly recommended to at least consult an attorney to determine if one is needed in your specific circumstances. An attorney is able to raise issues that may be important for your case, which you may have considered unimportant. Though remember that a hearing officer may favor the plaintiff if attacked by the attorney representing the defendant, so it is important to discuss your legal strategy with your attorney prior to the hearing.
During the Berman hearing, as the defendant, you have all the rights needed to ensure that you are guaranteed a fair trial as well as given the chance to present your case. You have the right to present evidence as well as rebut or disprove the evidence presented by the plaintiff. You have the right to testify on your own behalf, present witnesses as well as cross examine the witnesses presented by the plaintiff. (Translators are also always available to assist.)
Of course, you have the right to an attorney, an expert in labor and employment laws who will be on your side, fighting for your rights as the employer. I suggest you choose the right attorney who will allow you to spend your time running your business, not fighting legal battles better suited for the legal professionals.
To begin the hearing, most hearing officers allow for opening statements. Make sure that you have a 5-minute opening statement prepared ahead of time. In addition, make sure you bring the original and two (2) copies of any time records, pay stubs, correspondence with your employee and any other relevant documentation (employee policies, commission plans, business records, etc.) to the hearing. It would also be smart to bring the person who prepared your business records to help explain them to the hearing officer. Make sure to also bring a copy of the employee’s work history (start date, documentation of pay rate changes, etc.) as well as any correspondence regarding the alleged wage violation to the hearing.
Witnesses presented by the defendant in these types of cases can either attend voluntarily or be subpoenaed by the Labor Commissioner prior to the hearing date. Before presenting a witness, you should make sure that you have an outline prepared, similar to the outline you should also have prepared to ensure that you are ready to cross examine the witnesses presented by the plaintiff.
In addition to questions, you may also want the witnesses to present documentation during the hearing. Any subpoenas required must be made by the Labor Commissioner who must be noticed at least 15 business days prior to the hearing by way of an Information for Subpoena form. Remember that you will be responsible to pay for any costs related to the preparation for these subpoenas, so make sure you really need them. (Though it is always better to be safe than sorry.)
Any evidence considered to be relevant to your case can be admitted during a Berman hearing, even hearsay is admissible (something not allowed in civil cases). While building your case, remember that your defense will need to be based on any interactions you may have had with your employee in the past, the Initial Report or Claim filed by the employee as well as anything discussed during the claims conference. Make sure you make a note of anything covered during that conference to potentially be used during a Berman hearing. Along with the assistance of a good employment attorney, you should have no problem building a strong defense against the claim filed by the plaintiff.
These Labor Commissioner Hearings normally do not amount to much more than a few thousand dollars, so there is no reason to be nervous or lose sleep over them. Allow Rupal Law to help you be prepared for this “day with the Deputy Commissioner” as we help you to learn what your legal responsibilities and obligations are as an employer. A consult package with Rupal Law gives you the peace of mind of knowing your legal support and guidance is just a phone call away. Contact us today to learn more and take the first step towards compliance knowledge and avoidance of unexpected legal claims. www.rupallaw.com
