Attorney Articles | Waging a Claim Over Wages

Articles by Legal Department Staff

The Legal Department articles are not intended to serve as legal advice and are offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in the article.

Waging a Claim Over Wages

This article provides a brief discussion of the process and procedures for a wage claim filed with the California Labor Commissioner.

Ann Tran-Lien, JD
Managing Director of Legal Affairs
The Therapist
May/June 2016

Understanding one’s obligations or rights under California employment and labor laws can be daunting. Over the years, both employer and employee members of CAMFT have contacted the CAMFT legal department, to discuss a wage claim filing and have sought information regarding the process and procedures of such filing. This article provides a brief discussion of the process and procedures for a wage claim filed with the California Labor Commissioner. Any person who seeks specific guidance on his/her rights or responsibilities under California labor law should seek advice of an independent attorney.

The Issue of Employee vs. Volunteer
The members who have been interested in filing wage claims have asserted that they were either misclassified as “volunteers” and/or not paid in accordance with California labor laws and Wage Orders. The majority of these members are Registered Interns obtaining hours toward licensure.

An essential issue for many Registered Interns and employers of Interns is whether Interns can be unpaid volunteers or must be classified as W-2 employees and paid accordingly. In a 2013 case, Johanna Workman, v. Regents of the University of California, San Francisco Branch, the Labor Commissioner referenced and applied the Six-Criteria Test to determine if Ms. Joanna Workman, a Post-Doctoral Psychology Intern who provided counseling services at UCSF, should have been paid at least minimum wage for each hour she was required to work or if she should have been classified as a volunteer. The Labor Commissioner concluded UCSF’s internship program did not satisfy all six criteria required to classify someone as volunteer, and thus, found Ms. Workman should have been classified as an employee and not exempt from the state’s minimum wage law. For further reading on this case and the Six-Criteria Test, see “Recent Labor Board Ruling Sets Precedent for California Internships” by Ann Tran-Lien, JD [The Therapist (May/June 2015)].1

In addition, many employers and employed Registered Interns have sought guidance on whether employed Registered Interns can be “charged” for overhead expenses or supervision. CAMFT recommends employers not require employees to pay back a portion of their wages to cover the employer’s operating costs, including supervision time provided. California Labor Code section 221 prohibits employers to require employees to relinquish or pay back a portion of their wages to their employers. In addition, Labor Code sections 450 and 2802 prohibit employers from charging employees for anything that benefits the employer or anything that could be considered an obligation of the employer. For further reading on CAMFT’s interpretation of the labor laws and our recommendations on this issue, see Sara Kashing’s article, “Part I: Charging Trainees and Intern Employees for Supervision” [The Therapist (Jul/Aug 2013)].

Generally, nonprofits do not receive automatic exemption from compliance with the Wage Orders/ labor laws. The key issue would be whether the nonprofit is operating a “commercial enterprise.” For an in-depth look at “commercial enterprises,” read Staff Attorney, David Jensen’s article, “Part 2: Are Nonprofits ‘Commercial Enterprises’?” [The Therapist (Jul/Aug 2013)].

It is generally recommended that employers review their compensation policies and ensure compliance with state labor laws, when applicable. Employees who are concerned with their wage compensation may consider discussing the issue with their supervisors or employers to work out a lawful solution.

The Procedures and Process of a Wage Claim
An employee who believes his or her employer did not provide accurate compensation according to the labor laws, including being misclassified as a volunteer instead of an employee, may file a claim with the Division of Labor Standards Enforcement (DLSE), which is under the direction of the State Labor Commissioner.2

The DLSE, also known as the Labor Commissioner’s Office, is a part of the California Department of Industrial Relations. The Labor Commissioner’s Office is a California state agency that decides claims for unpaid wages and other labor law violations. The Labor Commissioner’s Office enforces minimum labor standards to ensure employees are not permitted to work under substandard, unlawful conditions.3

A wage claim may be filed for wage-related reasons, including but not limited to the following:

Unpaid wages, including overtime, commissions and bonuses.
Wages paid by check issued with insufficient funds.
Final paycheck not received.
Unused vacation hours that were not paid upon termination of the employment relationship.
Unauthorized deductions from paychecks.
Unpaid/non-reimbursed business expenses.
Liquidated damages for failure to receive minimum wage for each hour worked.
Waiting time penalties for failure to receive final wages timely upon separation of employment.
Penalties for paycheck(s) that have bounced or are not negotiable within 30 days of receipt.
Sick Leave Pay for time accrued and used for which an employee was not paid.

An employee filing a claim for non-payment of wages or other compensation must first file a claim with the local office of DLSE. The list of district offices can be found here: The Initial Report or Claim is the DLSE Form 1, which can be found on the DLSE’s website at . Along with the DLSE Form 1, the employee should also submit the following DLSE Forms (if applicable):

DLSE Form 55 (This form should be submitted if the employee’s work hours or days of work varied per week or were irregular and the employee is seeking unpaid wages for meal/rest pay violations)

DLSE Form 155 (This form should be submitted if the claim involves “commission pay”)


Vacation Pay Schedule (This form should be submitted if the claim involves vacation wages)
In addition to the Initial Report or Claim form, the employee should also submit a copy of the following (only if the employee has the document(s) in his or her possession):

Time records of the hours/dates worked that support the claim

Pay stubs showing the wages paid during the claim period

Dishonored or bounced checks, if any, during the claim period

Any notice of employment information, such as notice from the employer regarding the employee’s rate of pay, whether the employee was paid by the hour, day, week, salary, commission, etc., any overtime rate of pay

The claim is then assigned to a Deputy Labor Commissioner who will determine the best way to proceed depending on the circumstances of the claim. The following initial actions may occur:

The claim is referred to a conference;

The claim is referred to a hearing; or

The claim is dismissed.

The Deputy Labor Commissioner must inform the parties as to the specific action that will occur within thirty (30) days of the filing of the claim. Not all cases will necessarily go to a conference before a hearing.

The Conference
If the Deputy refers the claim to a conference, a Notice of Claim Filed and Conference will be sent to both parties, which will provide a description of the claim; date, time, and place of the conference; and direct parties they are expected to attend the conference.

A conference is an informal meeting, in which the Deputy meets with the parties to determine if the claim can be resolved without a hearing. The conference is an attempt to resolve the matter without going to the hearing. The parties will not be under oath when answering questions, but should be prepared to discuss the claim with the Deputy. The employee has the opportunity to explain the basis of his or her claim, and the employer has an opportunity to respond to the allegations. The parties should bring any documentation to the conference that may support their position. The Deputy will facilitate discussion and attempt to determine the merits of the claim. These conferences are less formal than court proceedings, and according to the DLSE, parties frequently appear at conferences without attorneys, although it is permissible for parties to bring their attorney.

Employers and employees who receive a Notice of Claim Filed and Conference should make all attempts possible to attend the conference. In the majority of cases where the employer fails to attend the conference, the claim will be scheduled for a hearing. If an employee fails to attend, and good cause cannot be shown, the claim will be dismissed.

In the event the claim is not resolved at the conference, the Deputy may determine the claim be referred to a hearing, or dismissed (there is no legal grounds to proceed).

The Hearing
If a hearing is scheduled, the parties will receive a Notice of Hearing which will set the date, time and place of the hearing. The Notice may be sent via US mail or personally served on the parties.

Hearings are formal proceedings. Parties and witnesses, if any, testify at the hearing under oath and the proceeding is recorded. The hearing officer has the sole authority and discretion for the conduct of the hearing and is not bound by formal rules of evidence. Thus, the hearing officer has discretion in accepting or refusing evidence offered by the parties and has the authority to determine whether the assessment of penalties is appropriate in the specific case. Parties may expect a hearing officer at the hearing to do the following: explain the issues and the meaning of terms; set forth the order in which parties and witnesses will testify, cross-examine and rebuttal; question parties and witnesses; assist parties in the cross-examination of the opposing party and witnesses; accept and consider testimony and documents offered by the parties; take notice of well-established matters of common knowledge and/or public records; and ascertain whether there are stipulations by the parties that may be entered into the record.

Each party may be represented by an attorney or another party of his or her choosing. Each party may also have witnesses testify. Witnesses may attend voluntarily or upon issuance of a personal subpoena that compels the witness’ attendance. Subpoenas for documents, records, or witnesses must be issued by the Labor Commissioner. If a party is requesting a subpoena be issued, the party must submit Form DLSE 564 (Information for Subpoena), which will include the reasons why the documents, records or witnesses are relevant or necessary. The party who is requesting the issuance of a subpoena would need to pay the witness fees and mileage, as well as the costs incurred in the service of the subpoena.

It is important for both parties to make all attempts possible to attend the hearing. Any requests for changes in date, time, and place of the hearing are generally not granted, unless upon the showing of extraordinary circumstances. The rare decision to grant the request is within the discretion of the hearing officer and senior deputy. If the employer fails to attend, the hearing officer will decide the matter on the evidence he or she receives from the employee. If the employee fails to appear, the case will be dismissed.

After the hearing, the hearing officer will issue an Order, Decision or Award of the Labor Commissioner (ODA), which will set forth the decision and the amount awarded, if any. The ODA will be filed in the DLSE office within fifteen (15) days after the hearing and the parties will be served with a copy shortly thereafter.

Appeal to Superior Court
Either party may appeal the Labor Commissioner’s ODA to the appropriate superior court.4 The ODA provides the time period for which an appeal can be made to superior court. The appealing party may obtain a Notice of Appeal (DLSE Form 537) from the DLSE office and must serve a copy of the Notice to the Labor Commissioner and the opposing party.

It is recommended that parties who are interested in appealing an ODA to superior court consult with an attorney. If the employer appeals the ODA to superior court, the DLSE may represent the employee who is financially unable to afford counsel in the appeal proceedings. DLSE legal staff has discretion whether to represent the employee. The DLSE has set forth the financial criteria that the employee must meet in order to be represented by the DLSE. The assigned Deputy for the case will send the employee a Request for Attorney Representation (DLSE Form 553) and a Statement of Financial Status (DLSE Form 554). These Forms would need to be completed and sent back to the DLSE office.

The court hearing will be held at the date, time, and department indicated on the Notice of Hearing provided by the superior court. The hearing will be heard de novo by a judge of the superior court. De novo means “starting anew,” thus the Superior Court considers nothing that took place at the prior Labor Commissioner hearing, including the ODA. At the end of the hearing, the superior court will issue a judgment that supersedes the ODA issued by the Labor Commissioner.

California employment and labor laws are complex, and individuals seeking specific advice regarding their situation may want to consider obtaining legal representation or discuss their issues with a representative at a DLSE office.

Ann Tran-Lien, JD, is a staff attorney and the Managing Director of Legal Affairs at CAMFT. Ann is available to answer member calls regarding legal, ethical, and licensure issues.


1All CAMFT legal and ethical articles can be accessed on the CAMFT website at, under Resources.
2 The Labor Commissioner does not have jurisdiction over independent contractors, union members, and has only limited jurisdiction over employees of public agencies.
3 In situations where claims are very complex and involve a large number of employees and records, they will be referred to the DLSE’s Bureau of Field Enforcement. If this occurs, the parties will be so informed by the deputy handling the case.
4Cal. Lab. Code, § 98.2.

This article is not intended to serve as legal advice and is offered for educational purposes only. The information provided should not be used as a substitute for independent legal advice and it is not intended to address every situation that could potentially arise. Please be aware that laws, regulations and technical standards change over time. As a result, it is important to verify and update any reference or information that is provided in this article.