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Ca No Break No lunch No OT ???

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  • MarlinPittman
    replied
    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]

    Leave a comment:


  • JoeBatters74
    replied
    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.

    Leave a comment:


  • MarlinPittman
    replied
    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

    Leave a comment:


  • JoeBatters74
    replied
    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.

    Leave a comment:


  • mtracy
    replied
    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.

    Leave a comment:


  • JoeBatters74
    replied
    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

    Leave a comment:


  • mtracy
    replied
    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.

    Leave a comment:


  • JoeBatters74
    replied
    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

    Leave a comment:


  • mtracy
    replied
    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.

    Leave a comment:


  • Interceptor
    replied
    My understanding is that you can bypass the DLSE and file in small claims court. Depending on the value of your case. Weather small claims or another court.

    Attorneys have different fees. Some may take it on a contingency others may want fees paid up front.

    I am not exactly sure but I believe if you prevail in a civil hearing the defense/ employer could be held liable for your attorneys fees.

    This would be a good question for the California labor law attorney M Tracy who offen post messages on this forum.

    I actually only ended up in superior court once for a labor law matter after the employer appealed a decision from the DLSE.

    If you have a really good case you may find an attorney in your area willing to provide services.

    Leave a comment:


  • JoeBatters74
    replied
    I do have a fourth year that I was not paid for. Would the cost of an attorney be prohibitive ? Or would they have to cover attorney's fee's ?

    Leave a comment:


  • mtracy
    replied
    Marlin, great job on posting that. We have been waiting for this one for a while. A previous decision had come up with the 1 year limitation.

    I will just clairify one point. The court in this case determined that meal and rest violations were a wage due immediately. As such, they are covered under a theory of restitution -- that is, getting something that you were owed. This allows you to sue under an unfair business practice law which has a statute of limitations of 4 years. The DLSE can not enforce this additional 4th year. Thus, if you have violations that go back more than 3 years, you are better off suing in court so you can get the fourth year.

    Leave a comment:


  • MarlinPittman
    replied
    Re: Cal Statute of Limitations

    Dear Joe,

    I've attached a PDF file containing a California Court of Appeal - Fourth District ruling dated January 20, 2006. This decision primarily states that the statute of limitations on issues related to denial of meal or rest breaks is 3 years, insomuch as they've ruled that it is a wage rather than a penalty. You may already know that if it were a penalty (rather than a wage), you can only sue back 1 year. I hope this is of assistance.

    PS:....the PDF file was too large to Attach, so I Zipped it. Just unzip it and view via your Acrobat Reader.

    Good Luck,
    Marlin
    Attached Files

    Leave a comment:


  • JoeBatters74
    replied
    Thank you both very much. I am looking into a new job went there the past 2 days to see how things go, and the first thing I noticed was no breaks no meal time. You look at jobs differently after going through this.

    Leave a comment:


  • Interceptor
    replied
    Bring the violation of labor code 226 c and f to the attention of the deputy labor commisioner when you attend your conference. In the mean time I would just file an estimated wage claim for the loss of wages / meal and rest period penalties.Then your conference will be scheduled. The deputy labor commissioner will determine if they are in violation and may or may not penalize them.

    You also may be entitled to waiting time penalties. How this works is when an employee request from an employer or former employer wages that are legitimately due. And the employer refuses to pay then the employee can recover wage per day times 8 hours . Not to exceed 30 days. For every day the employer failed to pay the employee. You can also discuss this at your conference.

    Most of the time employers will not comply with applicable laws. This is no surprise to the DLSE. They see this all the time.

    I suggest you file for an estimate of actual wages. Explain why your claim is estimated . Then ask the Labor Commissioner if LC 226 C and F apply. Also if waiting time penalties apply. Dont claim the penalties let the Labor Commissioner apply the law if the see necessary.

    Sometimes an employer will just pay the wage claim and elect not to appear. Then the DLSE will mail your check to you that they recovered from the employer. It is only if you go to a hearing will the Labor Commissioner apply penalties.

    It is good to be educated on the basics of labor law. No One can pull the wool over your eyes when you know better. I have personally fought several labor board claims and have prevailed on them all.

    Check out labor code section 432. You have the right to inspect all materials in your personell file as well.

    Hope this info helps you.

    Leave a comment:

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