California Employment Law
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Good morning Ria,
I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today.
You may actually sue the employer in court and recover your wages/commissions. Additionally, if you sue in court, under federal laws (FLSA), you are also entitled to seek what is called Liquidated damages. Liquidated damages is equal to the amount of back wages that they owe you and must be paid in addition to the wages themselves---so you essentially get double the wages owed you in the claim based on their willful failure to pay you. Additionally, you will be entitled to be awarded costs of the court as well as your attorney fees incurred in filing suit and litigating it against your employer. http://labor-employment-law.lawyers.com/wage-and-hour-law/Liquidated-Damages-and-FLSA-Claims.html
A recent law signed by the CA Governor, allows CA employees to seek liquidated damages when making a claim to the Division of Labor Standards Enforcement (DLSE), just as they could if suing in court initially. So in CA whether you make a claim to the Division of Labor Standards Enforcement, or file an action in court on your own, you may seek liquidated damages. Here is a link to an article on the change---good for CA employees, but bad for CA employers:http://www.shawvalenza.com/publications.php?id=343
The award of liquidated damages is mandatory unless employer shows that (A) act or omission giving rise to violation was in good faith and (B) the employer had reasonable grounds for believing that
act or omission was not a violation of 29 U.S.C.A. § 216(b). This is a very difficult standard for the employer to meet.
Here is an excellent article which deals with pursuing an FLSA claim---which you may do in either state court or federal court. Do take the time to review it:
You do not do a demand letter. You either file a wage complaint with your local office of the CA Department of Labor, or you sue your employer directly in court.
The only drawback to using the labor commissioner is that your employer can appeal any rulings there all the way out of the system and end you back in court---prolonging the entire process.
You might be better off retaining a local employment law attorney to assist you. The court may award you your legal fees and legal costs when you win the suit against the employer.
You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction. Please remember to rate my service to you when our communication is completed. I wish you the best in 2013,Doug
liquidated damages is mandatory >>>
Could you pls elaborate this little bit more?
On what basis liquidated damages is awarded to employee?
Do you think i'll qualify for the same?
Good morning Ria, The DLSE has discretion not to (meaning that these damages are the rule and not the exception---which is why they are sometimes described as almost automatic) award liquidated damages when an employer is unable to prove that its failure to pay minimum wage was in good faith and based on reasonable grounds. Employers can't count on the agency to exercise that discretion. And most courts will presume that an employer's violation was willful, and that the employee is entitled to liquidated damages.If you were owed unpaid wages, and you can show that they were wrongfully withheld, then you would be eligible for liquidated damages under the law. The entire basis fir these damages is proving that you performed work, earned wages, but that those wages were not paid to you.Thank you for your positive rating of my service, . It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:http://www.justanswer.com/law/expert-lawtalk/Thanks again.DougWhen you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.
Do you still practice in CA?
How i can reach to you?
Pls suggest me some least expensive way to claim my wages.
Attorneys are asking atleast 30% contnigency OR hourly rates.
Which way i should prefer?
Hi Ria, That choice is entirely up to you. I'd have to be able to tell the future to be able to suggest which will cost you the least. It all depends on how quickly you can get a settlement, or whether you have to spend a year in litigation and do a trial---which would mean that the attorney would easily have 100 to 150 hours in the case, plus legal expenses. You will have to decide for yourself. I'm sorry. Doug.
i am not expecting wages claim will go on for long time. It'll be settled pre litigation or before first trial.
Which way you suggest? A typical wage claim takes how many hours of litigation?
If i go hourly, lawyers put 200 hours how i can challenge that? Its easily can be abused, right?
Good morning Ria, I understand you want me to tell you what to do, of the two choices you have, and I cannot do that. You can do the math as easily as I can, I am sure of that. Neither you nor I know how long your case will take. Yes it could settle early---and yes the employer could force it to trial. There is no typical wage claim, not really. And I assure you---there is nothing typical about a $80,000 to $90,000 wage claim. As regards what you might do if your attorney works 200 hours, that is a new question---entirely unrelated to your right to wages. As you may not be aware, the Rules of JustAnswer specify that each customer ask one question in each question thread. For new questions, the customer is asked to open a new question thread. I am required to ask that you place these new questions in a new thread, as is required by JustAnswer. I do sincerely apologize for any inconvenience this might cause you.
You may ask for me personally by referring to me by name (Doug) in your new question and I will be able to assist you. As the questions that you are posing are new, I am required to ask you to please open up a new question thread for them. Thank you for your understanding. Doug
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