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Ca No Break No lunch No OT ???

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  • #16
    I recommend going to an attorney for any type of claim. Of course, I am an attorney, so I may be baised. However, if the attorney is not interested in your case, she will just tell you. I have told some people who come to me with cases that don't need an attorney to simply file with the labor commissioner.

    The main reason I recommend going to an attorney is that you may have claims that you are unaware of. The DLSE will not tell you what you are entitled to. You have to tell them what you are claiming and then they will listen to you and make a determination.

    In fact, a lead case on the statute of limitations for meal periods was caused because the DLSE did not tell the person he had claims for meal periods -- he was just suing for overtime. He won the overtime case at the DLSE and the employer appealed. At this time, he got an attorney. The attorney looked at the case and found all sorts of additional penalties that could be sued for and filed for them. Unfortunately, it was past the 1 year statute (in that case, the court ruled for a 1 year statute, as noted above, different courts have ruled differently). However, if he just would have gone to the attorney in the first place, then he would have had thousands more in additional claims. So, how much money did he "save" by going the "free" route?

    In addition, if your claim is for any sizable amount (over $10,000), the employer will likely appeal. You can do the appeal by youself, but you will likely need an attorney at that point. Since the trial is a complete start over, the time the attorney spends on it will be about the same as if you hadn't gone to the labor commissioner.

    Finally, as Interceptor noted, if you win in court, they other side has to pay your attorney fees. Not only does this save you a lot of money, but it provides a huge incentive for the other side to settle. In the case I mentioned above, the overtime claim was for about $11,000. The attorney fees were $84,000. This is what makes employers settle.
    Michael Tracy
    Attorney
    http://www.laborlawradio.com

    Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

    Comment


    • #17
      Just got back from my hearing. quick help needed

      Had my hearing. Was told I can only file for 1 year on the Meal and rest breaks. Also told that rest breaks more than likely never are granted . I know that earlier in this thread it was brought up how it is a wage not a penalty. But now I have the labor guy telling me I can only file for a year. He also said the $750 fine for them not granting me access to my records was not something they would go after. I have to email him back soon to amend my complaint, advice please.

      Thanks

      Comment


      • #18
        I can not give you any advice on what to do. I can only say that people should think very carefully before going to the DLSE. They can't get you a 4 year statute of limiations, they can't get your double damages, they won't tell you about other claims that you may have. In addition, for some types of work, they will dismiss your case under state law when you have a great claim under federal law.

        For some reason, everyone thinks they are "saving" money going to the DLSE. My experience is that it is rarely in the plaintiffs interest to go to the DLSE as opposed to suing in court.
        Michael Tracy
        Attorney
        http://www.laborlawradio.com

        Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

        Comment


        • #19
          can I file in labor court and then file in civil court for the wage not claimed in the labor hearing ? I have a 4th year so I had planned on filing in small claims court for the 4th year, but if the labor hearing will only take the 1 year, can i then file for the other 3 in civil court ? Also do you practice in the Sacramento area ? Thanks

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          • #20
            These are fairly situation specific questions, and you would really be best talking to an attorney directly. I do not practice in Sacramento. You can try the Sacramento Bar Associations attorney referral system or any of the other great attorney referral systems.

            Also, I just post on these forums to try to help people get a better understanding of their rights under California Labor Law. I don't solicit for business here and it would not be appropriate to respond to such inquiries in a public forum.
            Michael Tracy
            Attorney
            http://www.laborlawradio.com

            Disclaimer: The above response is a general statement of the law and should not be relied upon as legal advice. It only assumes the facts that are stated in the message. The above response does not serve to form an attorney-client relationship.

            Comment


            • #21
              Thank you, i just spoke with one who basically said the labor commision will only go after the year, but they would go for 4, but that I was doing the right thing by going to the DLSE, this confused me. Thank you again I am going to file with DLSE with the 1 year and go to civil court for the other 3 I guess.

              Comment


              • #22
                Hello Joe,

                I'm currently in litigation for the same thing (as Plaintiff....I'm not an attorney). My claim goes back 4 years also. I'll tell you what my lawyers (James Cordes & Travis Logue - Santa Barbara) said to me when they accepted my case on a contingency basis:

                The issue of whether our claims are wages rather than penalties is still in flux. Various California Courts have ruled differently. Some say penalty, some say wage, some say penalty AND wage! (sheez). No doubt it will end up in the California Supreme Court. In the meantime, it's possible to proceed with the aid of an attorney. There's the possibility that your (former?) employer would have to expend an excessive amount of funds just to defend the case and would therefor settle. A lawyer may also recommend mediation, if your employer is amenable. I recommend finding an attorney (on contingency basis) who will examine the particulars of your case and advise you accordingly.

                Also, as long as DLSE is promulgating the 1-year standard (it isn't law), there is no point in pursuing such a claim by that route.

                IMPORTANT: I'm not an attorney, but Tracy seems correct to caution that you should consult an attorney before taking the 1-year settlement. I don't know, but accepting a settlement may adversely effect your ability to come back later for the additional 3 years.

                Good luck

                Comment


                • #23
                  Thank you Marlin, I am in the process of finding someone to take the case on a contingency basis. The hearing for my cliam would not be until June, so hopefully I will get this figured out somewhat faster this way as well.

                  Comment


                  • #24
                    Hello

                    Hello Joe,

                    It's been some months since anyone has posted to this thread. Just wanted to let you know that my case has been resolved out of court. (I'm not allowed to talk about it.) I hope you've received some relief.

                    [email protected]

                    Comment

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