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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Attorney
Category: California Employment Law
Satisfied Customers: 111548
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Should I use a lawyer or DLSE in california to collect

Customer Question

Should I use a lawyer or DLSE in california to collect unpaid ot and meal breaks and penalties Inot california
I am misclassified as exempt but do not meet the primary duties 5. Just the salary test
Submitted: 1 month ago.
Category: California Employment Law
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Under CA law, you are entitled to damages plus attorney's fees for them misclassifying you and not paying you proper wages or meal breaks. Whether or not you use an attorney depends on the value of the claim and number of months that you are claiming. If the claim is 2 years of wages (maximum that can be claimed under law) then using an attorney is best. If the claim is less than 1 year, then filing your own complaint to DLSE is usually easier.
Customer: replied 1 month ago.
I was under the impression that I could go back four years with an attorney and 3 years with the DLSE?
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your reply.
Actually, it is 3 years under Cal. Code Civ. § Proc. 338, but if you can prove it was willful and malicious such that it qualifies for unfair competition it can be 4 years under Cal. Bus. & Prof. Code § 17208. So if it was willful and malicious (intentional) you could pursue it for up to 4 years with a lawyer and through the courts. If it was unintentional misclassification (a mistake) then it is 3 years and DLSE is the fastest means.
Customer: replied 1 month ago.
Doesn't the DLSE take 75 percent? Who decides if it was intentional or not?
Expert:  Law Educator, Esq. replied 1 month ago.
Thank you for your reply.
DLSE does not take 75% of what you are entitled to in wages, those wages are your right to keep. The facts of the case determine whether or not it was intentional and that is a judgment made by the hearing officer or the judge as to whether or not it was willful and malicious.

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