Federal and State Agency Hearing Defense for San Diego Employers


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Employers in San Diego and across California face an ever-increasing landscape of employee based claims and litigation. Federal cases with the U.S. Department of Labor or U.S. Equal Opportunity Commission are often based upon violations of the Fair Labor Standards Act or FLSA or violations such as discrimination or wage discrimination in lower income jobs.

The California Labor Commissioner, California Employment Development Department (EDD), and California Department of Fair Employment and Housing each have their own areas of focus. The Department of Fair Employment and Housing is known as “California’s Civil Rights Agency.” The EDD focuses on many aspects but primarily on the misclassification of employees as independent contractors and payroll
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tax audits. The EDD is also known for wage and hour violations such as paying employees “off the books,” or “under the table.”

The California Labor Commissioner handles wage and hour, retaliation, discrimination and other workplace-related issues. A San Diego employer should never respond to an inquiry or attend a conference or hearing without skilled representation by an experienced San Diego employer defense attorney.

Cases Usually Begin with the Filing of a Claim by a Current or Former Employee

Usually, cases with these agencies are begun by the filing of a claim by a present or former employee. The agency will usually provide a copy of the complaint to the employer with the opportunity to respond. This is an excellent opportunity to “nip it in the bud” and convince the agency to close the claim. An experienced employer defense attorney will help your company to craft a thorough and compelling response. This should include appropriate documentation and end with a request for the dismissal of the claim.

If the agency elects to move forward with the claim the employer will usually be invited to an “informal” conference or hearing. It is important for San Diego employers to know these meetings are not “informal.” There is a specific purpose for a conference or hearing. These meetings usually begin with the Deputy Commissioner or hearing officer grilling the employer to determine their knowledge of US and California labor laws as well as their application. A skilled law firm can help to prepare you for these venues, and the questions you are likely to face. Your attorney(s) should also help you to organize important documents, records and supporting evidence. The ultimate goal should be asking the hearing officer to close the claim.

Conferences are often called “Settlement Conferences” due to the nature of these “informal” settings. If the hearing officer determines there is substance behind the employee’s complaint, the conference will turn to discussions of settling the claim. Employers without legal representation are at a significant disadvantage throughout the conference.

Defending Employers in Agency Hearings

In some cases, there will not be a conference. In others, an unsuccessful conference will lead to the scheduling of an “informal” hearing. You should have an experienced attorney at your side throughout all of these agency inquiries. The goal is not to have a casual discussion and send you on your way. The agency is, in essence, representing the interests of your former or current employee and you and your company (as “the employer”) are definitely on defense. Your experienced employer defense attorneys should guide the deposition of witnesses and the presentation of evidence to present a clear and convincing case that the claim should be rejected.

Once the hearing is concluded, the hearing officer generally has a short period of time (i.e. 15 days for California agencies) to render the “Order, Decision or Award” or ODA which will include a summary of the proceedings and the agencies justification for their decision. If you wish to appeal this ODA you have a very brief window (10 days to 2 weeks) to file your appeal with the appropriate court.

There are additional financial risks of appeal and your skilled employer defense attorney should provide sound advice and counsel to guide you through each step of the process.

ABOUT THE AUTHOR: Daniel Watkins
Mr. Watkins is an experienced litigator and trial attorney with over 50 Jury and Bench trials to his credit in 25 years of practice. He has achieved substantial victories in well-publicized trials throughout California and Wisconsin. Mr. Watkins has successfully tried and litigated cases in the areas of Healthcare Compliance, Commercial Litigation, Unfair Business Practices, Fraud, Breach of Contract, Discrimination, Sexual Harassment, Construction Defect, and Unfair Competition

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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