Labor Board Complaint

Brad Nakase, Attorney

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Most complaints brought against employers can be brought to certain administrative agencies in California. These are known in the legal world as labor boards. Here, these boards treat claims similarly to a court and handle certain workplace disputes.

Which board fits my particular case?

Although California has many agencies, more than 300, the two main agencies used for workplace disputes include: The Labor Commissioner’s Office and The Department of Fair Employment and Housing. In order to choose between each one, the employee needs to analyze his or her claim. What is your grievance? The first agency handles money including lost wages, meal breaks, rest breaks, and overtime. The second handles more discrimination-based cases.

Labor Commissioner’s Office

This administrative agency runs and overlooks the entire Division of Labors Standards Enforcement (DLSE).[i] This agency has the right to control, access, dispute, resolve, and hear all claims under its jurisdiction.[ii] Some of the claims brought in front of this agency include: unpaid wages, overtime, lost breaks, failure to be paid, unlawful deductions, late payments, distribution of pay stubs. Basically, this agency enforces the laws that regulate payments to employees.[iii]

However, the agency can also hear some types of retaliation or whistleblower cases. Retaliation arises when an employee files a claim against the employer for some sort of discrimination, wage issue, or worker’s compensation, and the employer retaliates or engages in unlawful behavior against the employee. Retaliation comes in many forms. For example, if the employee files a claim and the employer then fires the employee because of the claim, that would be retaliation. Although the employee does not have to be fired to prove retaliation. Another example could be having to take days off to tend to the injury and the employer penalizing the employee, like reducing wages. Under California law, this is prohibited. In order to prove retaliation, an employee must show:

  • He or she engaged in conduct protected under the labor code (filed a worker’s compensation claim)[iv]
  • The employer engaged in adverse employment action (like firing the employee)[v] and
  • There was a link between the two above.[vi]

Further, the commissioner’s office can hear cases when an employee has discussed working conditions to others,[vii] the employee attended a political event during his or her off hours,[viii] or the employer reported a violation.[ix] Although these are just a few examples of other types of cases the agency can hear, it is not an exhaustive list.

However, as stated above, it is important to look at the claim one is bringing and check to see if the commissioner’s office is the correct administrative agency to hear the case. Because the agency must have jurisdiction, or the right to hear the specific case, this is the first step in bringing a claim against the employer.

The Department of Fair Employment and Housing

If an employee believes he or she has been discriminated against, this administrative agency is likely the place to bring the claim.[x] Discrimination arises when a set of protected people or class have been treated differently based on certain attributes or characteristics. A few examples of discrimination include inappropriate jokes, unwanted touching, working conditions, job assignments, and unjust compensation.[xi] Here, many claims are brought that violate California’s Fair Employment and Housing Act (FEHA).

The Fair Employment and Housing Act (FEHA): California created regulation that prohibits different types of harassment/discrimination in the workplace.[xii] This law protects discrimination based off (just to name a few):

  • Race
  • Religion
  • Color
  • National origin
  • Disabilities
  • Medical conditions
  • Marital status
  • Sex
  • Age
  • Sexual orientation
  • Military status[xiii]

FEHA is the most widely used in California as it affords the most protection to employees similar to that of Title VII. Further, FEHA applies to all employers regardless of number employees.[xiv] An employer is defined as any person or agent acting on behalf of that person under FEHA.[xv]

These claims, like those stated under the previous administrative agency, can also be followed by employer retaliation. But like above, retaliation is prohibited.

I want to bring a claim to an administrative agency. what do I do now?

Because administrative agencies are similar to that of courts, the first step is the employee to build his or her case. This entails figuring out which laws the employer violated, the evidence the employee has, and what the employee wants from the employer. The employee then writes a complaint, a formal document explaining what happened and what the employee feels she is entitled to. This also can be done by an attorney. It may be in the best interest for the employee to speak with an attorney before driving head first into a complaint just to ensure all facts are correct, the claim is viable and timely, and the justice e system is respected.

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Legal Reference

Contact the Labor Commissioner’s Office

[i] Labor Code, § 21

[ii] Labor Code, § 98

[iii] Labor Code, § 98(a)

[iv] Labor Code § 132(a)

[v] Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, hn 26

[vi] Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, hn 26

[vii] Labor Code, §§ 232.5

[viii] Labor Code, §§ 1101, 1102

[ix] Labor Code, § 1102.5(a)

[x] Labor Code, § 98.6(a)

[xi] 29 U.S.C. § 631(a)

[xii] Gov. Code, § 12940, subd. (j)(1)

[xiii] Gov. Code, § 12900

[xiv] Gov. Code, § 12940, subd. (j)(4)(A)

[xv] Cal. Gov’t Code § 12940(j)(4)(A)

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