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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 37808
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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myself and 5 other co-workers were employed at a taco shop

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myself and 5 other co-workers were employed at a taco shop in San Diego. We are all undocumented and were paid in cash "under the table." However, we were never paid overtime. We all filed claims with the labor board for unpaid wages (overtime), no meal breaks, and no rest breaks.
Our hearing was scheduled for tomorrow, and today we were notified by the labor board that the hearing has been canceled.

So, I have read online and it appears that unpaid wages are first in line behind secured creditors, but what about unpaid wages "claims" that haven't yet been decided by a judge? And what about the intentional non-payment of overtime and no meals and no breaks?

You, and your coworkers would file a proof of claim form with the bankruptcy court, andwill detail all of the wages you believe you are owed. The debtor must then object to the proof of claim, and the bankruptcy judge will hold a hearing at which you will have an opportunity to prove your claim, the same as if you were in a Labor Commissioner hearing.

Here is the proof of claim form. Have each employee fill out a form and file it with the bankruptcy court clerk where the case is being heard.

Hope this helps.
Customer: replied 3 years ago.

are we allowed to file without an attorney representing us? and is there a fee?


also, you didn't answer my question about our priority in bankruptcy...will our claims be just behind secured creditors?


A proof of claim filing does not require an attorney. However, you may need some assistance from a bankruptcy lawyer to properly detail your claim. I cannot draft a proof of claim for you in this forum.

Claim priority is as follows:

0. Secured claims (are not part of the bankruptcy estate, so while they are first in line, it's not priority. Priority refers to unsecured claims against the debtor).
1. Claims for domestic support (child and spousal support).
2. Administrative Claims (attorney's fees, trustee's fees, accountant fees, etc.)
3. Involuntary bankruptcy "gap" claims (probably doesn't apply -- rare).
4. Claims for wages up to $11,725 per employee, earned within 180 days of the date that the bankruptcy was filed.
5. Employee benefit claims (health insurance, retirement plans, etc. -- probably doesn't apply).
6. Claims of Grain Farmers and Fisherman (doesn't apply)
7. Consumer deposit claims (layaway purchases).
8. Taxes (IRS; FTB).
9. Regulatory agency claims (applies mostly to banks that file bankruptcy).
10. DUI personal injury claims (debtor kills or injures someone while operating a motor vehicle).

That's everything. Hope this helps.

Customer: replied 3 years ago.

If I file the proof of claim myself, will I be required to have an attorney at some point, or can I argue my claim solo?

Hard to say. If debtor objects, then there will be a hearing, and you will have to write a brief in response to debtor's objection -- and appear personally to defend your claim. If there are five of you, and you all have essentially the same claim with the same priority, you may be able to hire a lawyer to represent all of you -- because there would be no conflict of interest for any of you.

Or, you can try to "do-it-yourself." A lot depends on whether or not the debtor is represented by a lawyer. Many employers that are insolvent don't want to spend any money, so they try to represent themselves. Consequently the entire proof of claim hearing turns into an episode of "Judge Judy."

Hope this helps.
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