Hi,

I plan to file a wage claim against my former employer. Are there are any penalties of fines imposed by the DLSE or any of their affiliates if the Labor Commissioner decides that I have no case?

Also, am I allowed to file a different wage claim against the same employer after the dismissal of the original? Thanks.

Are you asking if you can be fined or penalized if the DLSE rules against you? No, there are not penalties or fines in that case.

I imagine it would depend on the claim and why you didn't include it with the first one.

I worked for my former employer between 07/2006 and 03/2007 as a salary overtime exempt employee. He payed me $24,960 a year. That is the equivalent of $12 an hour for 40 hours a week. I believe that he was paying me well below the state of California's minimum salary requirement. The first thing I have to do is establish whether or not my job qualified for exempt status. The following is a brief list of my actual job functions:

1) Answered questions from customers regarding product quality, sizes, colors, pricing, shipping, and turn-around time.
2) Received orders for baseball caps and uniforms via telephone, email, and fax.
3) Maintained and updated company records with new orders and customer information; network database as well as hardcopy file folders.
4) Reported directly to President regarding any updates and changes in company database.
5) Communicated with overseas factory through email by approving product artwork and electronic embroidery files in a multi-stage process.
6) Coordinated incoming air and ocean shipments between customs brokerage and trucking companies.
7) Transported air shipments from LAX to warehouse using personal vehicle when trucking company was unavailable.
8) Inspected finished product, re-packaged, and shipped or delivered via FedEx or personal vehicle.

If the DLSE decides that I do not qualify for the exempt status, I will have to file another wage claim for unpaid overtime under a non-exempt status. No records were kept of my work times exept for emails I sent after my 8th hour (up to 4 hours) and my signature on several pick up orders at LAX to which I have no access.

On top of that, I had accrued some vacation time which the employer refused to pay with my final paycheck. I was offered 2 weeks of vacation and 1 week of sick pay accruing but not usable until after one year of service. I was employed a total of nine months in which I acrued 11.25 days of vacation and sick pay.

Anyway, the final claim comes out to a little over $4,000 of unpaid wages. That is a lot of money to me. If anyone thinks I should or should not go ahead with the claim, please let me know. Any advise would be extremely helpful. Thank you very much.

File the claim. There is no downside to you.
- As you stated, CA has a higher minimum salary requirement for a Salaried EXempt employee of twice CA minium wage (annualized). Either the employer owes you the extra salary not paid or you were misclassified and are really Non-Exempt, meaning you have an OT claim.
- I am skeptical that you are Exempt, but I am not expert on how CA-DLSE determines this, and no one at CA-DLSE cares what I think. I will say that if you are Exempt under the federal rules, the Administrative Exemption seems to be the closest. You might want to review the rules. I will include some webpointers.
- In CA vacation/PTO is vested but sick pay is not. I would not mention sick pay at all, because IMO it will at best confuse the issue.
- I have no expertise in how CA-DLSE runs their hearings but I would bring everything and assume that CA-DLSE does not want to see how many different hearings they have to go through to come up with a solution.
- This is not my area of expertise, but I am going to assume that you need to decide whether or not you should have been Exempt. Review the references I gave you and figure out what you think your unpaid OT claim would be. If the unpaid OT is little or nothing, then stay with the technical violation of underpaid salary ($28,080 in 2006 and $31,200 in 2007). Bring your OT information to the hearing even if you are not going to raise the issue (the employer might).
- Listen to other answers. There are probably people on this website who know more then I do on this issue.

http://www.dol.gov/esa/regs/compliance/whd/fairpay/main.htm

http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

No, DAW, you've pretty much got it covered. :D