The California Department of Labor Standards Enforcement (DLSE) conducts a thorough investigation into each wage and hour claim filed by a California worker. If the lead investigator from the DLSE decides there is enough compelling evidence to schedule a hearing, the investigator explains the decision, as well as lets the employee and employer know when to attend the settlement conference.
Also called a conciliation conference, a settlement conference is an informal meeting between the employee and the employer that is mediated by a Deputy Labor Commissioner. The conference does not represent the time for arguing and contesting evidence. Both parties do not take an oath and nor do they present any witnesses.
The informal nature of a settlement conference is to get both parties to relax and explain each side of the story. The Deputy Labor Commissioner’s job is to describe the evidence submitted by both parties, as well as intervene if the conference takes a negative turn. Both parties have the opportunity to resolve any differences and at the end of the conference, the Deputy Labor Commissioner can suggest ways to end the case or decide the claim has no legal merit and dismiss it outright.
If the DLSE schedules a settlement conference, the state agency sends out a Notice of Claim Filed and Conference to both parties. The notice describes the claim in detail and it tells the employee and employer when and where to attend the conference.
According to California wage ad hour statutes, the DLSE has 30 days after sending out the notice to hold a settlement conference. However, California law provides exceptions to the 30-day rule, such as when the court system is unable to accommodate the scheduling of a settlement conference before the end of 30 days.
The DLSE typically dismisses claims when an employee does not show up for a settlement conference. An employer that does not show up to a settlement conference can expect the DLSE to schedule a formal hearing.
If a worker’s claim moves past the settlement conference stage unresolved, the Deputy Labor Commissioner prepares a formal wage claim for the employee to sign. The signed claim represents the official start of the hearing phase of the wage and hour claim process. Named in honor of the sponsor of the legislation that created this administrative hearing, a Berman hearing operates similarly as a trial.
California law requires the DLSE to schedule a Berman hearing within 90 days after the Deputy Labor Commissioner decides the hearing is necessary to resolve the wage claim. The DLSE wants Berman hearings to start no later than 150 days from when an employee filed the initial wage claim.
Since a Berman hearing resembles a trial, many of the same features of a trial are part of the hearing.
- Both parties call witnesses
- Every witness that includes the employee and employer testify under oath
- Each party has the right to ask the other party questions
- Each party has the right to question the credibility of the statements made by the other party
- Both parties must submit documented evidence
Both parties also have the right to hire legal representation, but hiring an attorney is not a requirement for the DLSE to hold a Berman hearing. However, if you have not reached out to a California employment lawyer until now, you should consider contacting one because your employer will have a team of lawyers that counter your wage claim arguments.
Types of Acceptable Evidence
One of the ways a Berman hearing differs from a trial is that it does not follow the formal rules of evidence, the officer overseeing the hearing considers evidence that is only relevant to the claim or the defense of the claim.
The hearing officer might consider evidence that a judge would never accept during a trial. According to DLSE guidelines, the evidence presented during a Berman hearing must be the type of evidence “which responsible persons are accustomed to rely in the conduct of serious affairs.” With such a broad definition, the officer presiding over the hearing might have to make several decisions regarding the validity of evidence.
One more thing about a Berman hearing: you can file an appeal of the officer’s decisions within 10 days after receiving an appeal notice from the DLSE. Filing an appeal is another reason why it is a good idea to work with an experienced employment lawyer.
