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California DLSE "Investigator" omitted and changed evidence to match her Decision.

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  • California DLSE "Investigator" omitted and changed evidence to match her Decision.

    I was summarily fired a few days after lodging one of many complaints to my employer who was deducting our pay for taking legal rest breaks. I had been complaining to him for at least 8 months, but only recently began taking rest breaks. I was not happy with his illegal policy or the loss of wages.

    In California, we are allegedly allowed to take rest breaks (10 minutes per 4 hours worked). We are also allegedly protected if we complain about such an illegal policy to our employer and try to get him to correct it without violence or reporting him to the State.

    DLSE Investigator had ample written evidence to support the fact he was doing this, as well as a former employee that told me nearly verbatim the policy that the employer told me: "you can take a rest break, but you gotta punch out and you don't get paid." (paraphrasing).

    The Investigating Deputy omitted the following relevant evidence from her Decision:
    -DLSE Wage Claims nullified a signed Release and reopened my "closed" wage claim case when evidence came to light that showed the employer had fraudulently testified to the DLSE Conference Deputy about deducting rest breaks. Handwritten copies of this evidence were contained in the investigator's own case file, but she told me the case "was never reopened" and wrote her Decision as though this were true - despite her knowing otherwise. The DLSE Database itself shows it was reopened exactly when I have been maintaining it was.
    Apparently, the investigator altered the subpoena of my lone sworn witness' time cards from a period of 7-1/2 months down to only 2 months, resulting in allegedly finding "none" rest breaks on his cards. She also curiously set aside these time cards and sent them back to the employer without entering them into the official record. I believe this is because she knew the fact that this employee had start times consistent with mine would put the lie to the employer's claim that I had been summarily fired because I was "tardy" for the past 365 days or so.

    She falsely claimed the following in her Decision:
    - That my walking to a store literally (check Google Maps) 2 minutes away and back to purchase a soda took "27 minutes" and was therefore not a legal rest break. The "Investigator" herself claimed she would "check this out" when she visited the employer, and I am clueless how anyone could take even 6 minutes to walk to the end of a city block and back, much less 27 minutes. Somehow, her fact-checking supervisor(s) refused to even see THIS as a problem.

    - That I was "paid back" by the employer for the rest breaks that I took and they illegally deducted. She had time and wage records, but refused to tell me when this alleged reimbursement happened (because it didn't).

    - That the bookkeeper had told ME not to punch out for rest breaks. In truth, it was I who told the new bookkeeper that I was indicating rest breaks as required by our employer, but it was "illegal to deduct them." Curiously, the next pay period the bookkeeper DID deduct them - and later she apparently testified to the Investigator that she stole my wages "by mistake" (and falsely claimed to have paid me back for them).
    I successfully appealed the terrible work by the Investigator, but another Deputy was assigned the appeal and she never contacted me for additional evidence, clarification, or anything else. She seemed to have no interest in performing her duties, which may explain why she "retired" just after writing her Decision. I called and wrote her, but only heard "I'm very busy" as a response in the nearly 5 years she had it. One day out of the blue, another Decision plopped into my mailbox without a single correction of the prior Investigator's blunders and possible fraud. Since this new Investigator never contacted me once and repeated all the mistakes of the first, I can only assume she had no other interest other than running out the clock and saving the initial Investigator'a job by rewriting her suspect Decision nearly verbatim.
    Last edited by NoRest; 10-19-2009, 11:17 PM. Reason: clarifying names

  • #2
    Is this a press release, or did you have a question?


    • #3
      I'm not understanding the time line. When exactly were you terminated?
      I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


      • #4
        Originally posted by OHKYWV View Post
        Is this a press release, or did you have a question?
        Ohkywv, I like you!
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


        • #5
          Originally posted by Pattymd View Post
          I'm not understanding the time line. When exactly were you terminated?
          2001. DLSE apparently takes years and years to do a simple investigation and write a Decision. Even when the "Investigator" seems to be cooking the books.

          With the amount of layoffs over the past 8 years, I can imagine the overwhelmed and furloughed staff isn't putting them out any quicker. Justice delayed is justice denied.


          • #6
            Originally posted by OHKYWV View Post
            Is this a press release, or did you have a question?
            That's good. I guess I'm just venting and as a warning to others considering having the State of California back them up when they work for a criminal employer.

            Without a union, and nowadays even WITH a union, lousy employers with no regard for the law seem to be getting away with murder. Won't surprise me one bit when wronged employees start fighting back with violence instead of enduring years and years of stress, economic loss and pain only to find the Deputies had no intention of doing an honest investigation. DLSE Deputies fabricating evidence should be against the law and punished.

            When the Employee must sign "under penalty of perjury" and yet the Employer and the Investigator do not... that's simply a recipe for disaster.

            Here's a question: when you have absolute proof that a Civil Servant covered up and lied about evidence it can be proven that she had - what can be done to hold her accountable? Her actions obviously threw the case (otherwise why would she need to make it up and include it in her Decison?), so there are monetary damages, too.
            Last edited by NoRest; 10-19-2009, 11:31 PM.


            • #7
              Here's what I don't get in this whole scenario. Why would a DOL investigator, who doesn't know you from Eve, go through this HUGE set-up to falsify data, lie, whatever. What possible reason could she have had?

              You cannot sue her civilly, as she was "acting as agent" of the employer in her official duties (even though you think she performed them terribly). Governments are basically exempt from civil suits for damages as well.
              I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.


              • #8
                "Why" civil servant messes up a case

                I'm with you on that question. This Employer had been caught lying to the Wage Claim Deputy - he reopened the case - and yet the Retaliation Deputy lied straight to my face that it had "never" been reopened! I got the DLSE file and it's written in the W.C. Deputy's handwriting "Reopen case." I may sound paranoid because it was such a ridiculous "investigation," but the fact is the DLSE's own records (including electronic databases) fully back me up.

                Bottom line is I guess the DLSE staff is overwhelmed, and if you are unlucky enough to get someone who "has to get it off (my) desk" as she told me, there ain't any time to actually get at the truth. With the years they make you wait, you expect they'll actually spend some time on your case when they work on it. Seems like the civil service codes allow them to do whatever it is she did to me and get away with it so far without any liability. I guess crime pays very well, if she ever gets raped and the police actively harm her investigation as badly as she did mine then perhaps karma will have been served.
                These people are allowing Employers to get away with murder.

                Warning to others: get an "Employment" lawyer (NOT "labor" lawyer) from the start - the DLSE wouldn't know a labor law violation if you brought them sound, video and a signed employer confession. We're apparently all on our own to defend ourselves.


                • #9
                  The DLSE and the DIR are corrupt

                  Dear NoRest, I would stick by your guns. There is no excuse for a DLSE investigator to fabricate facts in your case and in fact Hearing Officer Jean Murphy of the San Jose DLSE committed the same kind of fraud in my case. In fact I believe Hearing Officer Jean Murphy accepted a bribe and there is no reason why you should not suspect the same thing in your case. And in fact there are California laws against fraud and they are Civ. Code §§1572 (actual fraud) and 1573(constructive fraud). But at the state government level, the DLSE can be sued under the federal Code Title 42 §§ 1983 for violating your civil rights; in this case your due process rights. Unless you can get an ACLU lawyer or at least a lawyer to represent you on a contingency basis, I wouldn’t go there from my experience. See for my travails with the EEOC and the federal courts.

                  In fact in my related DLSE retaliation case, claim 3350, with these same employers, I claimed the employers fired me after they found out about the federal case because of their gross labor law violations. (For instance they owed me under labor code 2802 circa $10,000 for the use of my vehicle as a process server that they hadn’t paid me or for that matter any other process server working there at the time.) They then hired the same lawyer that represented a defendant in my federal case. They then claimed they knew nothing about this federal case after they hired this lawyer and this same lawyer referred to this federal case as a DLSE case! After I poked so many holes in this obvious deception, you would think this would be a slam dunk after they finally admitted they knew about this federal case and in fact were lying about it to the DLSE for over a year and a half. Nope. In my labor compensation case I complained about this hearing officer fraudulently reinventing my 2802 claims and accepting absolutely provable fraudulent evidence as legitimate evidence in her decision and not only did this corrupt DLSE hold up the back wages check I won at this hearing, but because of this complaint my retaliation case has been buried in the DLSE backyard apparently forever. No one at the DLSE or the DIR will even give me a status report on this case though I’ve asked them in writing a half dozen times. As a final insult to injury, when I requested under the Public Records Act the hearing recordings, the recordings was missing over an hour of the hearing that was edited out. The DLSE and the DIR are as corrupt as any agency in any banana republic.


                  • #10
                    Thank you!

                    I appreciate your post, heliocen. To people that have not encountered such extreme problems with the DLSE or other government agencies, the stories of our travails can come off as sounding ridiculous.

                    And they ARE ridiculous, because as a previous poster has stated, "Why would a DOL investigator, who doesn't know you from Eve, go through this HUGE set-up to falsify data, lie, whatever." This response comes from a "framing" that most of us have which expects that people holding government positions are honest, do their jobs well, and are immune to bribery and arbitrary decisions. In reality, some are, some aren't.

                    Maybe it's the same instinct that doesn't want to let go of the Santa Claus and Tooth Fairy myth, but people working in government are not immune from behaving evil and lazy.

                    In my case I think the Investigator was just trying to rush out the case because she was fond of the well-spoken employer and his slick bookkeeper and it was too complicated for her to understand that just because they told her they "paid back" the deducted rest breaks doesn't mean they actually did. That's just common sense, but she would have no part of it. Even when I highlighted facts backed up by evidence and witnesses that she had wrong and which she possessed, she intentionally changed them in her Decision.

                    The Deputy handling my case was probably not bribed, but I guess we can't rule that out, either. Too many "mistakes" in the Employer's favor, which even the appeals Deputy repeated nearly verbatim even though she had documents that told her what she was writing was not true.
                    Last edited by NoRest; 10-24-2009, 11:38 PM. Reason: Changed adjective


                    • #11
                      Hi NoRest and Labor Law Folks;

                      I wonder myself about the motivations of some of these jaded decisions that have been made in my federal and this California DLSE cases. Are they stupid, uneducated, prejudiced, corrupted or some or all the above? In my DLSE case, for instance, I had my unemployment benefits denied. The EDD interviewer said that my employer had a lot of witnesses that said I was screaming so loudly over my cell phone that everyone in their various offices could hear me cursing a string of profanities and had come out of their offices and were listening by the manager’s cell phone. I contended to her that I had a dentist appointment that I had cleared through one of the dispatchers on my process serving job previously. I pointed out to her that when my manager said the dispatcher didn’t give me this approval, I told him that if the dispatcher said that that it was “bull****” and that was the only off-color word I said and was said in a normal voice in the context that the dispatcher was “lying” about it. I asked the interviewer; wouldn’t my version have more credibility by the mere fact that why would this manager not hang up on me early on if I was screaming at him like the employer described? And being familiar with the EDD rules, I reminded her that the employer had the burden of proof so it was my word against his and even if she believed that story there was no previous instances or warnings in writing so by the rules it would be considered a single instance of “hot headedness” and therefore not by itself disqualifying and then I cited the EDD rule. I’m not kidding, the EDD interviewer replied, “You mean the rules I had to learn when I got this job?” Well, the administrative judge gave me back my benefits by the exact rule I cited this EDD interviewer. In my opinion, I’d say she was not corrupt but I’d say her ruling was colored by being probably stupid and uneducated at least for that particular job, and absolutely prejudiced in favor of employers. And in this same category let me refer you to the graffiti that the DLSE own employees have desperately resorted to at I think it’s hilarious that they would be so sexually and profanely explicit about their directors etc., but I’m also aware these same people are deciding whether the labor complaints have validity. But when you get to the next level like we both have and its one door after another slamming in your face and they won’t under any circumstances weigh the evidence you’ve presented, I’d say they are corrupt to the core, if not with actual bribes but by any standard of intellectual honesty. These bureaucrats show absolute contempt for the labor laws, due process and the public.


                      • #12
                        Okay, this is not a venting forum. I think we all understand your views on the DLSE.

                        If you have a question to ask, feel free to do so. Otherwise, please take your vents off line.
                        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                        • #13
                          No CBG

                          I was trying to give clarity to what one might expect when encountering corrupt government bureaucracies. So feel free to disagree with my experiences and my reflections upon those experiences that I can very well document. Your so far peanut gallery observations are not constructive. So please chime in with your elucidating edifications without the schoolmarm approach would be appreciated, at least to anything I might say. Thank you.


                          • #14
                            Neither is your venting constructive. Nor do you get to dictate who responds or in what form.
                            The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


                            • #15
                              Dear CBG, NoRest and others interested in justice;

                              My apologies, you are not a schoolmarm because a schoolmarm wouldn’t have said, “Nor do you get to dictate who responds or in what form”. I think she would have said, “Neither do you get to dictate who responds nor in what form.” But I believe we are both in our bantering, venting or however we wish to term it, stealing from our host. NoRest has the podium so let us both respectfully let others address his inquiries in any manner they choose.


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