How To File a Complaint with the California Labor Board

California labor law covers a wide range of legal issues involving employment, wages, pensions and retirement, independent contractors, union, labor disputes, safety issues, any many more. In California, all workers have legal rights and protections under the law. Workers who feel that their employer may have acted unlawfully or may have violated their workplace rights have several remedies available to them. In any labor dispute, the first step is to file a complaint with the appropriate agency. The process for filing a complaint is generally the same for most disputes and violations that occur between employers and employees. However, there are significant differences in which claims may be filed and where.

Employers must prevent harassment, discrimination, and retaliation, while upholding their duties to comply with state and federal wage and hour laws. Employers are not permitted to harass—or allow other employees to harass—on the basis of sex or any other protected categories under state and federal law. Furthermore, employers—including managers and supervisors—are prohibited from retaliating against employees who complain and report incidents of harassment or discrimination. Rather, employers are obligated to prevent, investigate, and rectify harassment and discrimination in their workplace.

Where Do I File a Complaint?

There are multiple labor and employment agencies at the state and federal level that handle various employment-related issues. The most common are the California Department of Fair Employment and Housing (DFEH), the Equal Employment Opportunity and Housing Commission (EEOC), the Division of Labor Standards Enforcement (DLSE), California Department of Industrial Relations.

Workers in California who feel that they have experiences violations of labor laws may have multiple complaints that cross the various agencies. For example, the federal Age Discrimination in Employment Act (ADEA) addresses the unlawful practice of age discrimination against older workers. Both the EEOC and the DFEH are able to investigate alleged violations of the ADEA, however, one agency will generally take the lead.

However, a worker who feels they are the victim of age discrimination may also have a wage claim against their employer for violation minimum wage and overtime laws. Wage claims are generally handled through the DLSE and the Department of Industrial Relations. These claims also have different filing requirements. The wage complaint may also be filed with the DFEH, allowing the aggrieved party to streamline the complaint process. However, the employee may expect long delays in investigation due to budgetary issues with the Department.

The DFEH may be an appealing agency, however, for employees who seek to bypass the administrative avenue and proceed to formal litigation. Under California Government Code section 12965(b), individuals—whether or not represented by attorneys—must exhaust all of their administrative remedies with the DFEH by filing a complaint and obtaining a “right-to-sue notice” from the Department before filing a lawsuit.

Due to the complexities of the multiple state and federal agencies, differing filing requirements, and various remedies available, it is important that workers first consult with an experienced employment law attorney. There are significant deadlines and time restrictions that may affect a worker’s ability to enforce their legal rights and protections under the law.

What is the Process for Filing a Discrimination Claim Against an Employer?

Claims for discrimination or retaliation filed with the Department of Industrial Relations follow a simplified process. Employees are only required to print and mail a complaint form available at the Department of Industrial Relations. On the form, the employee will be asked to explain, in detail, the reasoning for the complaint, their employer’s information, contact information for any potential witnesses, and what outcome the employee desires.

Complaints filed with the DLSE of the Department of Industrial Relations must be filed within six months of the alleged violation(s), known as “adverse action(s).” Adverse actions may include unlawful termination, demotion, suspension, reduction in pay or work hours, unlawful refusals to hire or promote, among many others.

Complaints filed to the EEOC are subject to a 180 day time limit from the date of the alleged incident. However, under the California Fair Employment and Housing law, this period is extended to 300 days if the employee also files a complaint with the DFEH. The time period may be reduced to as little as 30 days if the complaining party receives notice that a state agency has ended its processing of a charge. Additionally, the employee may be required to contact an Equal Employment Opportunity counselor within 45 days of the alleged discriminatory action. There may be exceptions allowing for an extension of this period, however, the employee will not want to be in a position of needing to argue those grounds due to the fact that they may be considered too late for their complaint to be accepted.

What are the Differences Between the EEOC and the DFEH?

California’s employment laws offer the same minimal protections as federal employment laws. In many respects, California law provides greater protections for employees. For these reasons, the selection of California law is a more attractive choice for aggrieved employees. For example, California law provides wider classifications of disabled persons than under the federal Americans with Disabilities Act (ADA). Additionally, California employment law extends to more employers than under the EEOC; extending to employers with as few as five (5) employees, unlike the minimum 15 employees under federal law.

While both agencies may investigate employment complaints and prosecute themselves, they are severely under-budgeted and limited to tight resources. As a result, the complaint process is generally delayed and creates significant frustration for the employee. In most circumstances, the process can take over a year to resolve. The DFEH, however, allows for an aggrieved party to automatically file a complaint and receive a “right to sue notice,” which provides for independent litigation with or without an attorney. It should be noted that it is highly unadvisable to pursue an independent action without first consulting with an experienced employment law attorney.

What is the Process for Filing an Unfair Wage Claim?

Wage claims are generally filed through the Department of Industrial Relations. Unlike discrimination and retaliation claims, unfair wage claims require additional paperwork and preparation. Unfair wage claims extend to:

  • Unpaid wages, overtime, commissions and/or bonuses
  • Wages paid by check with insufficient funds
  • Not receiving a final paycheck
  • Non-payment of vacation hours upon termination of the employment relationship, regardless of nature (e.g., resignation, discharge, or layoff)
  • Unauthorized deductions from paychecks
  • Unpaid or unreimbursed business expenses
  • Failure to provide meal or rest breaks in accordance with California law
  • Failure to pay an employee the minimum wage for each hour worked
  • Waiting time penalties for failure to receive final wages timely upon separation of employment
  • Unpaid Sick Leave Pay for time accrued and used

Unfair wage claims require the following supporting documentation:

  • Time records
  • Pay stubs and past checks
  • Copies of any dishonored or bounced checks
  • A copy of any collective bargaining agreements (if applicable)
  • An overall summary of job description, rate of pay, title, duties, working conditions, and pay schedule.

The aggrieved party must first fill out a Form 1 labor board complaint and will generally need to attach a Form 55 that explains each amount owed for each pay period worked for the employer. If the complaint includes a retaliation claim, a Form RCI-1 will also need to be filed. These forms can be complicated and failure to accurately complete the forms may result in unnecessary delay or even rejection of the claim.

The complaint will then need to be filed with the correct DLSE office. There are 19 regional offices and the complaint must be filed with the one associated with the city of employment. This can create complications and confusion, however, because the correct office may not be the one closest to the city of employment. Filing the complaint with the wrong office can create significant delays and may require a re-filing of the complaint with the correct office.

After the complaint is received and filed, notice of conference will be issued by the labor board; approximately within 1 to 2 months. The conference is an opportunity for the employee, the employer, and/or both parties’ attorneys to attend and answer questions before a commissioner. The commissioner will then finalize the labor board complaint.

Following the conference, a final hearing will take place, within a month up to one year, depending on the time restraints of the board. The employee will be required to issue subpoenas from the labor board and conduct proper service on the employer and any witnesses in order to preserve the right to present crucial evidence at the hearing. The hearing is conducted before a hearing officer who will review all evidence and testimonies and issue an ODA, “order, decision, or adjudication.” The parties have 10 to 15 days to appeal the ODA, which will restart the entire process. However, the appeal transfers the complaint to an actual court and takes the decision making out of the hands of the labor board.

Due to the complexities associated with the complaint and appeals processes, it is highly recommended that employees who have DSLE complaints seek the advice and counsel of an experienced employment law attorney before proceeding.

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