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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32133
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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what can be done about a Labor commissioner who passes out

Customer Question

what can be done about a Labor commissioner who passes out rullings entirely contrary to what the codes say. Isn't this considiered abuse of power? Is it possible to have this person prosecuted or repermanded, if it is, how does someone do it? In California   also, if I apeal this rulling and take it to court, I have to put up the money for the fine plus court costs. I have to be represented by a lawyer and if I loose have to pay the other person's lawyer. If I win, does the other party have to pay my expenses?

Submitted: 3 years ago.
Category: California Employment Law
Expert:  Tina replied 3 years ago.
Hello and welcome,

Your recourse involves appealing the decision if you believe it is contrary to the law. The commissioner cannot normally be prosecuted for such errors, but their decision reversed since they are immune from suit.

I understand the appeals process can be costly, but that is the process to reverse such decisions typically.

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Customer: replied 3 years ago.
what about the abuse of power/color of law.
I am being fined for paying an employee late after being fired. it was more like she quit but I did say to her if you won't do as is required then you will have to go. I didn't have a check with me at the time, I had no intentions in fireing her and there was not possible to get a check at that time. I tried to contact her the next morning but she avoided me for 14 days. code no. 203 states she needed to be paid when terminated, true but it also goes on to say that an employee who "absents him or herself cannot benifit from this penalties
Expert:  Tina replied 3 years ago.
A commissioner acting in the scope of their judicial authority is normally immune from suit, so a suit for abuse of power would typically be dismissed.

You could request a rehearing, but if it is denied, your recourse would normally involve filing an appeal.

Customer: replied 3 years ago.
so as I understand what you are saying is this commissioner can just run rampant, disregard the people's rights, trash any laws. In general do anything they please with no guide-lines to follow and they are above the law, no one can do anything. what would keep them from taking "kick-backs" and have a sweet little racket going? if this is the case, how are we any better then these dictators that are being overthrown. Judges can be prosecuted for certain things. Why is a labor commissioner above the law? They are not God, someone signs their pay check
Expert:  Tina replied 3 years ago.
I understand you are upset about the situation. I am simply trying to answer your legal question. They do not run rampant typically and their decisions are subject to review by the court of appeals.

Commissioners have the same immunity as judges when acting in a judicial capacity typically. The US Supreme Court has ruled that they are immune from suit unless they are acting outside the scope of their jursidiction. So as long as the commission has the authority to rule on this type of case, they would normally be immune from suit.

Tina, Attorney
Satisfied Customers: 32133
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
Tina and other California Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Thank you Tina. I am not trying to argue with you. It is that this is what I would expect in Saudi Arabia, Philippines or Ukraine. I've spent a fair amount of time in those countries and this is what you expect. they don't claim to go by any laws or that you rights will b e protected or that you even have any.
Expert:  Tina replied 3 years ago.
CA is relatively strict in enforcing wage laws and the law does require that employees who are terminated involuntarily be paid compensation due them upon termination typically.

Good luck to you.

Customer: replied 3 years ago.

Hello again Tina,

I'll drop this soon 'cause there isn't much I can do about it but what I'm being charged for is "willfully failing to pay". That isn't the case at all. This is a home for handi-caped adults, 24hr.care. Some of the clients came to me complaining that this staff person was serving them alcohol at dinner and making them take turns saying grace before each meal before they would be served their meals then were forced to eat and drink everything they were served. Well there are several things wrong with that picture. Clients do have rights plus several take medication that can't be mixed with alcohol. I went to the facility and asked if she would come outside away from the clients that I needed to talk to her. She did but as soon as I said alcohol she became very beligerent and insisted on getting the clients involved. She went in and was yelling at them saying they were back stabers and going on and on, I told her to leave the room and settle down. she refused so I told her that if she didn't leave the room and get away from the clients that I would have to fire her. At that point she went down the hall saying she wouldn't work like that and continued yelling back to the clients. so I told her that I didn't want to fire her but if she couldn't control herself that I wouldn't have any choice. So she called her on-again, off again husband and told me that I had to deal with him. Soon he showes up swearing and making threats so I told him to watch his mouth, when he wouldn't I told him to get off the property then when he wouldn't I started to call the police and let him know that I was. They both got in a car and left. There was never a chance that I could have gone to get a check. I couldn't leave them with her and They are not allowed to be left alone.

 

the other thing is, I started calling, trying to find out when and where she wanted her check but they wouldn't answer and continued to avoid me for two weeks,

At the hearing, the labor commissioner asked her if I had tried to contact her and she said "yes, he tried to contact me the very next day but I wouldn't answer".. What blows me away is the labor commissioner wrote in her report that I did try to contact the former employee and wrote her responce that she refused to answer any of my calls. In code 203 it states that if an employee absents him or herself or avoids in any way of being paid will not be entitled to benefit from "waitting time penalties". As clear as it is, penalties were still awarded for 15 days. You are right, I am very angry about this, not so much the money but their attitude, thinking they are gods and above the law anmd we are paying them very well for not enforcing the law the way it is written and was ment to apply equaly to everyone. Not the way they want to use it.

Expert:  Tina replied 3 years ago.
Do you have a follow-up question for me?

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