What is an “order decision or award of the labor commissioner”?

In California, the Order, Decision or Award (ODA) of the Labor Commissioner is the ruling of the hearing officer in a wage claim, often for wage theft. ODAs are issued after the wage claim hearing. The decision indicates who won the hearing and the award indicates how much the employer must pay to the worker.

The ODA can be appealed to California state court.

How do wage claims proceed in California?

If you think that your employer is committing wage theft or certain other labor law violations, you can file a claim with the Labor Commissioner’s Office at the California Department of Industrial Relations (DIR). This Office is also known as the Division of Labor Standards Enforcement (DLSE). It is the part of the State of California that is responsible for enforcing labor laws and wage orders.

Your claim will initiate an administrative process to resolve the allegation. The next steps are:

1. a meeting or conference with your employer overseen by a Deputy Labor Commissioner,
2. a hearing at the Labor Commissioner’s Office, and
3. the issuance of the Commissioner’s Order, Decision or Award.

Throughout this process, there is the opportunity to settle the case.

California employees should strongly consider getting the legal advice of an attorney with experience in California employment law before starting this process.

The initial conference

When you file your wage claim with the DIR, the Labor Commissioner’s Office will investigate the allegations you make in it. This usually means scheduling a conference between you and your employer. A notice of the date and time of the conference will be sent to you and to your employer. This is called a “Notice of Claim and Conference.”

At this conference, a Deputy Labor Commissioner will act as the hearing officer. He or she will:

• determine if the DIR has jurisdiction to resolve the case,
• ascertain the amount at issue, and
• try to settle your claim.

Many wage claims settle at this stage. The settlement agreement is enforceable by the Labor Commissioner if it is signed on forms provided by the Office. If you settle the case, you will receive the agreed-upon payment amount and will have to drop your claim.

If no settlement is reached, a hearing will be scheduled.

You and your employer can settle the case at any time before the hearing.

If you miss this conference and do not have good cause to show for your absence, your claim will be dismissed. If your employer misses the conference, a hearing will be scheduled.

The hearing

At the Labor Commissioner hearing, you and your employer will present evidence and testimony. The testimony is under oath. The hearing is recorded. The outcome of this hearing is legally binding.

Someone from the Labor Commissioner’s Office will serve as the hearing officer. Because you have the burden of proving your wage claim, you present evidence first. This can take the form of:

• your own testimony,
• testimony from any witnesses you have, and
• documentary evidence, like bank statements, pay stubs, and your employment contract.

Your employer can cross-examine you or your witnesses. Once you are done presenting your case, your employer will present its case in its defense.

The hearing officer will consider all evidence that is relevant to the case. The rules of evidence are very relaxed for this administrative process.

If you miss the hearing, your case will be dismissed. If your employer misses it, the hearing officer will issue an ODA based on the evidence that you provide.¹

The ODA

Within 15 days after the hearing, the hearing officer will mail his or her decision in the case.² This decision comes in the form of an Order, Decision or Award. The ODA says:

• whether your claim has succeeded or not,
• how much your employer owes you, and
• the reasons for this decision.³

The amount owed includes payments for:

• unpaid wages, and
• any penalties your employer owes for nonpayment of paychecks earned or other labor law violations.

If the ODA has awarded you money, your employer has 10 days to pay it. If 10 days pass and your employer has not paid and has not appealed the ODA, the Labor Commissioner will forward the ODA to the local California Superior Court. Once there, it becomes a legal judgment. This is a court order to pay the amount listed.⁴

The ODA resolves most wage claims. However, they can be appealed.

Can I appeal an Order, Decision or Award that ruled against me?

Yes, the ODA can be appealed. However, you only have 10 days to file one. You file your appeal in your local California Superior Court.⁵

Your wage claim gets heard de novo, or from the start, in court. This means that the ODA is disregarded. However, the rules of evidence are much stricter in court than they were in the hearing. This can make it more difficult to present the evidence that you want the judge and jury to hear. This makes it essential to have legal representation for the case.

Your employer can also appeal the ODA. If they do, they have to post the amount awarded in the ODA as a bond. The Labor Commissioner’s Office may appoint an attorney to represent you at this trial. If your employer appeals and then loses in court, you may be entitled to attorneys’ fees.⁶

How do I enforce an ODA against my employer?

If the Labor Commissioner’s Office rules in your favor and issues an ODA that requires your employer to pay, your employer has 10 days to pay or file a notice of appeal. If neither is received, the Labor Commissioner’s decision will be sent to California Superior Court. The ODA then becomes a legal judgment against your employer, much like after a civil action or lawsuit.⁷

Generally, the first step to enforcing a legal judgment is to issue a demand letter. If that does not induce payment, you can enforce that legal judgment by:

• getting a lien against your employer’s property, or
• seizing money or other property from your employer in a levy.

You can generally recover:

• the amount listed in the ODA or legal judgment,
• interest on that amount, and
• your costs of recovering the debt.

Claimants who need to enforce these adjudications under California law often need legal help to get what they are entitled to receive if their employers are unwilling to pay.

What are some examples of a wage claim?

Some examples of a wage claim that can be filed with the DIR are when your employer:

• is not paying you the applicable minimum wage,
• is not paying you overtime,
• will not let you take your unpaid meal and rest breaks,
• unreasonably refuses to let you use sick leave that you have accrued,
• is making illegal deductions from your gross wages,
• tried to pay you with a check that has bounced and is not rectifying the problem,
• is not giving you access to your payroll records or personnel file, or
• is taking some of your tips and gratuities.

However, these claims can only be filed by employees. The Labor Commissioner’s Office does not have jurisdiction over independent contractors. The Office does, however, have jurisdiction to determine whether you have been misclassified as an independent contractor. If you are an independent contractor, think that you have been misclassified, and have a wage claim, you can file it with the DIR.

Additional reading

For more in-depth information, refer to these scholarly articles:

• Democratizing the FLSA Injunction: Toward a Systemic Remedy for Wage Theft – Yale Law Journal.
• Wage Theft Criminalization – U.C. Davis Law Review.
• Facilitating Wage Theft: How Courts Use Procedural Rules to Undermine Substantive Rights of Low-Wage Workers – Vanderbilt Law Review.
• The Problem of Wage Theft – Yale Law and Policy Review.
• Wage Theft in Lawless Courts – California Law Review.

---