There has been much attention given lately to unfair labor practices in the state of California. Some business owners have required employees to engage in practices such as “off-the-clock” work, missed meal breaks, and long hours without overtime pay. One of the most abused industries and class of workers is those who are car wash workers, and recent legal action has demonstrated significant return of unpaid wages to California car wash workers. Stop Unpaid Wages is among the legal representation firms that are helping those who have not been compensated regain their wages from their former or current employer.
What Is Wage Fraud?
The state of California has labor laws that protect the rights of workers and allows them to receive fair wages, while also ensuring they have proper conditions under which to work. When employers break these laws, they can face penalties and fines and, in most cases, they must also compensate workers for any wages that they did not receive. Some examples of laws that can be broken by dishonest car wash employers are explained in the sections below.
Overtime Pay According to California Law
Under California law, any time a car wash employee works more than 8 hours in a single day or more than 40 hours in a single week, that employee is classified as working overtime. The employee must be paid one and one-half times their regular pay rate for any additional hours worked beyond these limits.
There are additional situations that require overtime pay, as well. If a car wash employee has worked six consecutive days in a work week and is required to work on the seventh consecutive day, the first 8 hours on that day must be paid at the overtime rate (one and one-half times the employee’s normal pay rate.)
Also, on any day a car wash employee works more than 12 hours, they must be compensated at double their normal pay rate for all additional hours above 12. Similarly, if an employee is working on the seventh consecutive day in a work week and works more than 8 hours, those additional hours must be paid at double the employee’s normal rate of pay.
Any employee that is considered to be “salaried” is also eligible for overtime pay unless they have been declared exempt under guidelines established by the state of California. The state maintains a detailed list of allowable exemptions on its website.
Breaks from Work
In California, all car wash workers that are nonexempt are entitled to a 30-minute lunch break, while they are off-duty if they have worked for more than five hours. They are also entitled to break from work for 10 minutes after every four hours worked. Any employee that works for more than ten hours in a workday is also entitled to a second 30-minute meal break.
Specifically, the off-duty break must meet the following guidelines:
- The employee is relieved of all duty during the break
- The employer must not be in control of the employee’s activities during the break
- The break time should be uninterrupted
- The employer should not discourage or impede any employee from taking their allotted break times
There are circumstances that allow for a meal period to be taken while a car wash employee is on duty, but these circumstances are carefully defined. The nature of the employee’s work must be such that they cannot be relieved of all responsibilities, and the on-duty meal time must be agreed to in writing by the employee. The employee is also entitled to be paid during the on-duty meal time. An employee has the right to revoke this arrangement at any time in writing.
If a car wash employee is required by an employer to miss a meal break during a work day the employer is required to pay an additional hour of pay at the employee’s regular rate of pay. If a rest break is not given during a work day the employer must also pay an additional hour of pay. Employees have up to three years to make a claim for these types of unpaid wages.
Working Off the Clock
Both California and U.S. laws restrict car wash employees from being required to work off the clock without pay. This includes any work required to prepare for a shift, or work required after a shift has ended. Also, if a car wash employee is required to wait for work during a shift, that time must be paid and an employee cannot be forced by the employer to clock out.
Reclaiming Lost Car Wash Wages
Any car wash worker who feels their rights may have been violated under these California state laws has the opportunity to file a legal action known as a wage claim.
This is a complaint that can be filed against an employer – either current or former – so that the worker can recover money that they should have been paid. The process is fairly simple and straightforward, and a qualified attorney can assist in the procedure.
The steps in filing a wage claim are listed in the sections below.
Filing a Wage Claim with the California DSLE
The primary agency protecting employees in the state of California is known as the Division of Labor Standards Enforcement, or DLSE. The DLSE has jurisdiction over all California employers in the areas of paying wages, minimum wage requirements, and the mandatory payment of overtime.
The DLSE can also investigate complaints about violations of regulations and laws protecting workers in the state of California and can hold hearings for the wage claim process. The DLSE has the authority to decide any questions brought before it within the realm of its jurisdiction and can exercise such powers as issuing subpoenas, compelling employers to produce documents, issuing citations and requiring employers to pay penalties.
Preparing a Wage and Hour Claim
The first step in filing a wage claim against an employer is to file a document known as an “Initial Report or Claim” – also known as a DLSE Form 1.
The DLSE Form 1 may be used to make a claim for any violation of California labor laws, including the following for car wash workers:
- Wages not paid
- Minimum wage not paid
- Overtime not paid
- Violations of meal and rest periods
- Failure to pay a split shift premium (in other words, when a worker is required to work two shifts in the same day separated by more than a one-hour meal break)
- Deductions from pay that have not been agreed to
- Business expenses that have not been reimbursed
- Paying wages late, or not paying them at all, after termination
- Payroll checks that have been dishonored (also known as “bounced checks”)
Whenever an employee is considering filing a wage claim, it is important to list all the wage claims the employee has against the employer. If anything is left out of the initial filing, it will be difficult for an employee to come back later and claim additional payments that could have been resolved during the initial proceeding.
Be Sure to Have Supporting Documents
It is always a good idea to have documents that support a wage claim against an employer, and in some instances, these documents will be required. The DSLE supplies a number of forms that can be used in this process, including the following:
- Violations of Meal and Rest Requirements.This can be documented on DLSE Form 55.
- Wage Claims Unpaid for Uncertain Times. Some employees are required to work varying or irregular shift hours and uncertain days of work. This can also be listed on DLSE Form 55.
Additional records that may be helpful in the employee’s wage claim would include:
- Work records made by the employee listing hours worked and specifically including hours for which the employee was not paid
- Any pay stubs that list hours paid during the relevant time of the claim
- Any paychecks that were dishonored
- Any documentation given by the employer to the employee for the purpose of employee compensation
Remember to make copies of all documents; originals should always be retained by the employee. Many employees may not have copies of these documents, other than perhaps pay stubs. Do not worry – these kinds of documents are not required to prove a claim; they simply assist the DSLE in investigating claims that are filed.
File a Claim at a Local DSLE Office
Currently, the DSLE does not receive wage claim forms electronically (online.) This means that the claims must be submitted either in-person at a local office, or through the mail to a correct address. All forms must include an original signature from the employee.
Any district office of the DSLE can receive an Initial Report (DLSE Form 1). However, it is most helpful if the DSLE Form 1 can be filed with the specific office location that will handle the claim in the area where the employee’s work was performed. Otherwise, the DLSE will transfer the form to the appropriate office and the processing of the claim could be delayed.
The DLSE maintains a list of its current offices online.
Filing a Form 1 is not a guarantee that a claim will be paid, or even heard. The DLSE has 30 days to notify the employee and employer that it intends to respond to the claim in one of three ways:
- Grant a hearing for the claim
- File a civil action in court on behalf of the employee, if the employee cannot afford to do so
- Decide to take no action
If the DLSE decides that a filing has merit, they will usually arrange for a proceeding known as a settlement conference. This is also known as a conciliation conference.
Attending a Settlement Conference
A settlement conference is a “first step” toward reconciling the car wash employee, the car wash employer, and the DLSE. It is an informal meeting and no one is placed under oath. The DLSE is required to send a “Notice of Claim Filed and Conference” to both the employee and employer.
This notice will contain the date, place, and time of the conference and will give a basic description of the claim. Usually, the DLSE will seek to hold the conference within 30 days of the notice, but this timeline is not always possible.
If an employee does not attend the settlement conference, the claim will most likely be dismissed. If an employer does not attend, the next step will most likely be to schedule a formal hearing for the claim.
It is possible to settle the claim at the settlement conference; car wash employees should be absolutely clear about all of the terms of any agreement reached at a settlement conference, as they may be giving up rights to future claims. This is a place where an experienced wage recovery attorney can be very helpful before any settlement agreement documents are signed.
Notice of Hearing
If a claim is neither dismissed or resolved in the settlement conference, The DLSE will move ahead by preparing a formal complaint that will require the employee’s signature. This is the formal beginning of a complaint process, which will next be scheduled for an administrative hearing with the DLSE.
This type of hearing is sometimes called a Berman hearing, after the legislator that created the process in the state of California, Howard Berman.
According to the law, a Berman hearing should be held within 90 days of the determination that a hearing is required. Again, this timeline is not always possible to keep. It could take up to 150 days for a hearing to occur unless there are circumstances under which an extension should be granted.
After a hearing is scheduled, the parties will be served a notice stating the time, place, and date of the hearing. This notice usually arrives by certified mail but can be personally served. Additionally, the DLSE must serve a copy of the formal complaint, which states the amount of compensation being requested.
At this point, the car wash employer may choose to file a written response which is known as an answer. The employer has 10 days to file an answer and must include a description of any defenses the employer plans to use in responding to the complaint. If the employer does not disclose its defense strategy on the answer form, it can be prevented from using any evidence connected to those defenses during the hearing.
There are no other documents required at this time.
It is possible to have a hearing postponed, or continued, by request of the car wash employee or the employer; however, they must show good cause for making a request to continue. The DLSE does not generally grant continuances of hearings once they have been scheduled.
An exception to this policy occurs if an employer is allowed to present evidence that was not disclosed on the employer’s answer. If this is the case, the DLSE must give the employee a continuance – if the employee requests one – in order to allow the employee to review any evidence and mount a challenge during the hearing.
The Berman Hearing
When the time for the Berman hearing arrives, it is a procedure much like a trial where arguments are made, and evidence is presented. It is certainly less formal than a trial in court, as there is no official judge. Rather, a Deputy Commissioner from the DLSE will preside.
Rules for evidence and procedures that normally apply in a court of law are not generally upheld in a Berman hearing. There are still some important concepts that are based on the rules of a trial that apply.
- Parties may call witnesses to strengthen their case
- All witnesses are to testify under oath
- Witnesses may be questioned by the other party
- Witness credibility may be challenged
- Documents may be submitted as evidence
Either party may be represented by an attorney, though this is not a requirement.
There are no formal rules for evidence, but the hearing officer can determine which evidence may be used to uphold either the claim or its defense. Some evidence that might normally be excluded in a court can be admitted in a Berman hearing. This includes hearsay evidence, though it must conform to something a responsible person would rely on in the conduct of normal affairs in life.
The deputy commissioner decides the order of presentation in the hearing; usually, the car wash employee will present first followed by the employer. It is up to the employee to prove the claim of lost wages. If so desired, the employer next can present evidence that challenges the claim.
Even if an employer does not appear at the hearing, or if they failed to file an answer to the claim, that does not mean the employee is automatically judged to be correct. The employee will still bear the burden of proof for their claim.
All documents presented as evidence must be explained as to source and legitimacy. Most documents that have been provided during the course of business are considered to be legitimate.
Should a car wash worker wish to present documents that they created – for example, a log of hours worked – the strength of the evidence would be greater if the car wash worker kept such records on a regular basis, and not just during the time period under dispute. Records created from memory after a claim has been filed are generally not accepted as legitimate.
Both the employee and the employer are responsible for arranging for their own witnesses. If the employee requests a subpoena to ensure that each witness actually attends the hearing, this may be granted. Employees also have the right to subpoena documents from the employer in support of their case at the hearing.
The number of witnesses that may be called can be limited by the hearing officer, at their discretion.
Issuing an Order and Offering Appeal
After all evidence has been presented, the deputy commissioner is required by law to issue an order that either denies or grants relief for the claim. This order must be issued within fifteen days after the hearing has concluded. The commissioner will offer an explanation of the decision, and such decisions are usually forwarded via first class mail.
If relief is granted to the car wash worker in the order, the amount of wages, penalties, and any other compensation due to the car wash worker will be stated. The employee is also able to receive interest at a rate specified by statute beginning on the date the wages were due until the employee received payment for the wages. The order may also specify partial relief.
If either the car wash employee or the employer is dissatisfied with the finding in the order, the claim may be appealed and would be sent to the superior court. Any appeals, by either party, would have to be filed within ten days of the service date of the order.
If an employee appeals the decision of a hearing, they are entitled to an entirely new hearing in superior court. This is not a matter of reviewing the DLSE’s order, but rather is a de novo, or “new hearing”, in which the court will make its own decision.
In a court case, the wage dispute and any other related claims can be considered, even if they were not raised in the DLSE hearing. There can be issues raised that the DLSE had no jurisdiction over. This situation would most likely warrant strong consideration of retaining a qualified attorney to represent the employee.
Paying Attorney Fees for an Appeal
If an employee files an appeal and goes to court, should they not win the case in court they may be ordered to pay fees and costs that the employer has for attorneys – as long as the fees are considered reasonable. However, if an employee wins a judgment of any amount in a court case, they cannot be held liable for the cost of the employer to appear in court.
In the inverse situation, if it is the employer who appeals a case in court and the employee is awarded any amount of compensation, the employer may be required to pay the attorney’s fees and cost for the employee. This law gives employees an incentive to obtain professional counsel and provides protection from intimidation in such cases, especially when an employer appeals an order from the DLSE.
The DLSE’s Decision is Final
In a case where no appeal is filed, the order of the DLSE is considered to be final. The DLSE will file a certified copy of its order with the court, and the court will ensure that judgment is rendered by the terms of the order.
Stop Unpaid Wages Near Me
If you are a car wash worker who has been defrauded of wages by your employer, you can consult a qualified attorney to help you regain your lost wages from your employer. The professionals at Stop Unpaid Wages are available by calling 424-781-8411.