Labor Commissioner wage claim or lawsuit: choosing a path
Two routes to recover unpaid wages, with different speed, cost and reach.
Employees owed wages in California can usually choose between filing a claim with the Labor Commissioner's Office (the Division of Labor Standards Enforcement) or going to court. Each has strengths.
The Labor Commissioner wage claim
A wage claim is filed with the Labor Commissioner, online or at a local office. There is no filing fee, and you do not need a lawyer. The process generally runs:
- Claim filed with your hours, pay rate, and the amounts you believe are owed.
- Settlement conference, an informal meeting with a deputy labor commissioner to see if the claim can be resolved.
- Hearing (often called a "Berman hearing"), where both sides present evidence and a hearing officer decides.
- Order, decision or award issued in writing.
Either side can appeal to superior court within 10 days after service of the decision (plus extra time if served by mail), and the court hears the case fresh. If the employer appeals, it must post a bond for the amount of the award, and if the employee is awarded any amount on appeal, the employer can be ordered to pay the employee's attorney fees (Labor Code 98.2).
The Labor Commissioner's official guide to filing a wage claim has the forms and office locations.
A lawsuit
A lawsuit in superior court can be the better route when the case is larger or broader:
- many co-workers are affected (a class action or a PAGA claim may be possible);
- the wage claim is combined with other claims, such as wrongful termination, discrimination or retaliation;
- the employer is likely to fight hard and appeal anyway.
California's wage laws allow successful employees to recover attorney fees for many claims, including unpaid minimum wage and overtime (Labor Code 1194), which is why many wage cases are handled by lawyers on contingency.
Comparing the two
| Labor Commissioner claim | Lawsuit | |
|---|---|---|
| Cost to file | None | Court fees (can be waived for low income) |
| Lawyer needed | No | Usually |
| Claims for co-workers | Your own claim | Class or PAGA claims possible |
| Other claims (discrimination, wrongful termination) | No | Yes |
| Speed | Depends on office backlog | Often longer, with discovery |
Deadlines
Most claims for unpaid wages under the Labor Code must be filed within three years (Code of Civil Procedure 338). In court, an unfair competition claim can reach back four years for restitution of wages. Claims for statutory penalties generally have a one-year limit (Code of Civil Procedure 340). Each pay period that passes can mean older wages fall outside the window.
Protection from retaliation
It is illegal to fire, demote or punish an employee for filing a wage claim or complaining about pay (Labor Code 98.6). Since 2024, an adverse action within 90 days of a protected complaint creates a rebuttable presumption of retaliation. A retaliation complaint to the Labor Commissioner is due within one year (Labor Code 98.7). Immigration status does not affect your right to be paid for work performed.