Question:

I recently filed a wage claim with the California Labor Commissioner for unpaid overtime that I think I am owed. I am still waiting for a decision from the Labor Commissioner’s office. In the meantime, my employer (who is contesting the claim) has started treating me poorly, singling me out for minor disciplinary issues, and giving everyone else better hours than I get. Is there anything I can do about this negative treatment?

Answer:

As a California employee, you are entitled to contact the office of the California Labor Commissioner, or any other government or law enforcement agency, about any issues that affect your working conditions. It is illegal in the State of California for an employer to retaliate against any employee who provides information to a government or law enforcement agency when the employee has reasonable cause to believe that the information involves a violation of, or noncompliance with, state or federal law. Employers are therefore prevented by law from discharging, demoting, suspending, or disciplining an employee in any way for engaging in this type of protected activity.

The failure to pay non-exempt employees overtime to which they are rightfully entitled constitutes a violation of the law (specifically, the California Labor Code and the California Wage Orders). You are therefore within your rights to bring your employer’s failure to pay overtime to the attention of the Labor Commissioner by filing a wage claim. If your employer is now retaliating against you for having filed a claim for unpaid overtime, your employer is in violation of the California Labor Code.

Just like you were able to file a complaint with the Labor Commissioner regarding your unpaid overtime, you may likewise file a complaint regarding the retaliation you are experiencing. The law provides that any employee (or applicant for employment) who believes he or she was discharged or denied employment, or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner, may file a complaint with the Commissioner’s office.

As a general rule, a complaint alleging discrimination and/or retaliation in violation of the laws under the jurisdiction of the California Labor Commissioner must be filed within six (6) months after the adverse retaliatory action (though some complaints, such as those for discrimination based on an employee’s need for leave due to domestic violence or sexual assault, may be filed within a year of the behavior being complained about). Adverse actions include unlawful discharge, demotion, suspension, reduction in pay or hours, and/or a refusal to hire or promote. After the complaint is filed, it will be reviewed to confirm that the Division of Labor Standards Enforcement does in fact have jurisdiction over the subject matter of the complaint.  If it is found that the complaint does fall under the jurisdiction of the Labor Commissioner, it will be assigned to a Retaliation Complaint Investigator for investigation. The investigator will contact the employer and any witnesses with information regarding the alleged discrimination or retaliation and, if appropriate, may request that the parties meet to explore the possibility of settlement.

Once the investigation is complete, if no settlement is reached, the investigator will prepare a written summary of findings and forward it to the Labor Commissioner. The Labor Commissioner will then review the summary of findings and make a decision.   If the Labor Commissioner finds the employer violated the law by retaliating or discriminating against the employee, the employer will be given 10 days to either file an appeal or to remedy the retaliation or discrimination.  If the employer fails to comply, an attorney for the Labor Commissioner will file a court action to enforce the decision.

Occasionally, the Labor Commissioner may decide that an informal hearing before a Labor Commissioner hearing officer is necessary in order to fully establish the facts of the complaint. Following such a hearing, the hearing officer will file his or her findings with the Labor Commissioner, who then decides the complaint based on the evidence presented at hearing.
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