American Corporate Security v. Labor Commissioner, a late 2013 case, illustrates why employees should hire a private lawyer to pursue their labor rights opposed to going through the Labor Commission. In this case a security guard filed a complaint with the Labor Commission in May of 2008. He ceased his security job in November of 2007. He complained about not receiving paychecks and said he would go to the Labor Board.

Three years after the security officer filed his complaint with the Labor Commission they issued a determination there was reasonable cause to believe the employer violated the Labor Code. The Labor Commissioner directed the employer to cease and desist from retaliation and offer the security guard reemployment with back wages and interest. Query, more than three and a half years after this employee left his employment what are the chances he had any interest in going back to work for an employer who retaliated against him and failed to give him a paycheck? Thus far, great results from the Labor Commission, but there is more.

Close to four years after he left the job the Labor Commissioner sent the employer a demand letter for back wages of almost four years of pay. In the real world of cases, no credible employee lawyer would argue a security guard could not find another job as a security officer in almost four years. No employer would pay almost four years of lost wages to an employee with a job that should be easy to replace. Notwithstanding, not long ago I did obtain more than five years in a combination of front and back pay for a pregnant woman in a jury trial, but there were reasons why it was hard for her to replace her $9.00 an hour CNA job.

Back to the security guard case. By the time the Labor Commission demanded almost four years of back pay, the employer argued the Labor Commission's extreme delay in bringing their charges prejudiced them. They argued their main witness died and others moved away. The employer further argued the security guard was not terminated in a retaliatory manner, but was fired for behaving belligerently and using profane language. They claimed reinstatement would violate statutes about job safety the Labor Commission is supposed to enforce.

The security guard's case eventually got to the Court of Appeals and was decided September 10, 2013. Once an appeal is over and an opinion is issued it takes sixty days for the case to come back to Superior Court. Sometimes the assignment of a new judge, following an appeal, takes months. The security officer most likely will not have a trial within seven years of the date of his termination of employment.

In representing 1,500 employees in labor disputes, I have never had a case involving one employee that took four years or seven years to get to trial. In my career the only cases I can think of that went on that long were a large class action including meal and rest break violations and a pregnancy discrimination case I won at trial but became a poster case for new laws based upon a long appellate history caused by the losing employer.

Don't be a smart ass and think you will get better results trying to be your own attorney before the Labor Commission. Real legal remedies and real monetary recovery for lawsuits are had with the assistance of an experienced labor lawyer. If you have a decent employment case an employment lawyer will take your case on a contingency and advance all costs. Whatever percent your lawyer takes will be more than made up in the dollar amount he is likely to obtain for you not to mention the faster and more efficient means he will use to adjudicate your labor dispute.

Karl Gerber, Firm Founder of the Employment Lawyers Group


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