I’ve had a lot of interest from clients lately about the details of the administrative hearing process that employees can pursue before the California Labor Commissioner. With this interest, and just having represented a client at a Berman hearing this week, I wanted to explain the process in a series of posts. 

An employee seeking recovery of unpaid wages has two options to pursue recovery: (1) file a civil lawsuit or (2) file a wage claim with the California Labor Commissioner under Labor Code section 98 et. seq. If the employee pursues her rights through the Labor Commissioner, the Commissioner will send notice to the employer regarding a settlement conference. This settlement conference is an informal conference during which a Deputy Labor Commissioner attempts to settle the case. Both parties may present their arguments, but the Deputy Labor Commissioner does not issue a ruling or decide any issues at this settlement conference.

If the settlement conference does not result in a settlement, the case will be set for an administrative hearing, known as a Berman hearing, pursuant to Labor Code section 98(a). During the Berman hearing, both parties can present their cases through testimony, witnesses, and documents. The hearings are basically mini-trials, but the formal rules of evidence do not apply. Moreover, parties do not need to be represented by a lawyer, but lawyers are regularly present to assist in presenting the evidence. The parties’ and witnesses’ testimony is under the penalty of perjury and the deputy labor commissioner records the hearing, and this audio recording can be obtained by the parties at a later date. The Deputy Labor Commissioner is supposed to issue an order, decision, or award setting forth the rational for his or her decision within 15 days of the Berman hearing. However, it has been my experience that the order, decision, or award is not usually issued in this time period given the drastic cuts in budgets and the huge workload facing the Labor Commissioner.

The Labor Commissioner’s award is binding on both parties, and is an enforceable judgment in Superior Court. The award, however, may be appealed to Superior Court by either party.