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I have a dilemma....I was recently awarded a labor claim by the CA DLSE for the non payment of my last day worked and for overtime work as well as the 30 days of waiting time penalties. I had a four month agreement with the employer for my base pay of $46.0k per year as well as a guaranteed draw of $3800.00 per month for those first four months after which I would go back to my base of $46.0K and a 2.5% commission rate. She said her husband "just wants to pay you $8.00 an hour".....anyway, the hearing officer made my 30 waiting penalty @ $64.00 a day versus the $355.92 that was my correct wage at the time. I was also awarded overtime etc. Issue-Do I file an appeal of this decision because of the incorrect calculation of the penalty?? About $8.0K?? As well the hearing officer made incorrect statements in the decision....i.e. that I knew I would be making $8.00 an hour?? There is much more to this story but I am just stuck on whether to file an appeal (trial de novo)???? Thank you!

Submitted: 410 days and 14 hours ago.
Category: Employment Law
Value: $15
Status: AWAITING CUSTOMER ACTION
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Optional Information

Los Angeles, California

Already Tried:
Talking to other attorneys to see if I have a case, searching for information on Labor Board Appeals. You name it, I have searched. It is more guidance I seek.....

Accepted Answer

Right now, legal research may lead you one way or another but I think the real issue is whether a bird in the hand is worth more than several in the bush. You may very well win at a trial de novo since the Hearing Officer's findings of fact won't be binding upon appeal but you will probably be waiting a lot longer and the money may not be there by the time the appeal is concluded. You may also lose at a trial de novo if the trier of fact decides to believe the employer. On the other hand, the difference in the amount is such that an appeal may be worth the gamble to you.

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Expert: johngibson15219
Pos. Feedback: 100.0 %
Accepts: 
Answered: 10/9/2008

Lawyer

I've handled a number of employment cases, most but not all in the area of discrimination.

409 days and 10 hours ago.

Reply

Hi Mr. Gibson,
Thank you for your answer. I just wanted to add what I ended up doing...I filed the appeal today as I can always withdraw it vs. losing any chance to file the appeal. My employer, of course, hasn't even submitted the $3200.00 award anyway....so I would have to pursue a judgment, get a writ of attachment-just continued stupidness with this woman. well the other part of this...she has a civil lawsuit against me for "advances against commissions" that were the guaranteed draw (in the amount of $13.0K). So now, there is a possibility of the cases being brought together. My cross complaint against her for this will be close to $100.0K. She is a freak but I have to proceed through the system.
Thank you again for your reply!!! :) Kim

Posted by johngibson15219 408 days and 18 hours ago.

Answer

If you have to go through the collection process anyway, you might as well appeal. If you are going to have to wait for payment you might as well wait for more rather than less. I think you made the right decision.

405 days and 15 hours ago.

Reply

Thank you again! But of course there is an update....the check came on Thursday to the Labor Board so I went with the "bird in the hand..." and dismissed the appeal and now will focus on the civil lawsuit she has against me and getting my cross complaint in so I can sue her for $250,000 (fraud, breach of contract, negligent infliction of emotional distress. malicious prosecution etc.)..... Because of her being such a horrible person, I have not be able to "pursue happiness" this whole year!
Thank you again for the advice....:) Kim

Posted by johngibson15219 404 days and 21 hours ago.

Answer

You're welcome Kim. Good luck.

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