Law Office of Kenneth F. Moss

Many managers consider going to the Labor Commissioner to collect unpaid wages instead of hiring a private attorney to collect those wages in civil court. The thinking is that they don’t have to pay an attorney to go to the Labor Commissioner. There is a flaw in that thinking:

If you go through a hearing in front of the Labor Commissioner it is true that you do not need an attorney. If you bring one the Commissioner cannot order your employer to pay your attorney’s fees. However, it is most likely that your employer will come to the hearing with an attorney.

If you lose before the Labor Commissioner, you have the right to appeal to the Superior Court. (Labor Code § 98.2a) At that appeal you not only are still entitled to have an attorney represent you, you are entitled to recover your attorney’s fees if you win at the appeal. But here is the catch:

If you LOSE at the appeal you will be required to PAY the attorneys’ fees of your victorious employer! (Labor Code § 98.2c)

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Even with a written agreement, voluntarily entered into, the wage order limits the amount of “credit” against the minimum wage obligation which may be taken.

Further, if all of the above requirements are met in the agreement, the owner or property management company is still only permitted to take two-thirds of the ordinary rental value of the apartment, and not more than $847.12 per month for an individual resident apartment manager. (Note that this amount reflects annual increases to account for the annual increases in minimum wage we have been enjoying, and in previous years the maximum amounts were less.)

In addition to being entitled to minimum wage (currently $15.50 an hour for employers of 25 or fewer employees, as most apartment owners are) for every hour you worked, for every such hour we can demonstrate you were not paid those wages as required by law, you are entitled to recover what is known as “liquidated damages.”

That means that for every dollar that an employee is able to demonstrate was illegally withheld from them, and should have been paid to them as wages, that resident apartment manager employee is entitled to another dollar because of the failure of their employer to pay them properly. The right to wages and liquidated damages goes back three years,with the right to go back a fourth year for wages only, without the additional liquidated damages.

The resident manager is also entitled to recover attorney’s fees for having to pursue improperly withheld wages . . . even if their attorney was working on a contingency basis!

In addition, Labor Code §1194(a) permits that any employee who is paid less than the legal minimum wage (or legal overtime compensation) applicable to that employee,is also entitled to recover interest on the amount owed,as well as the attorney’s fees incurred in pursuing the action.
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