22 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com previously considered “unsuccessful” in this sense,43 the California Legislature has since deemed that an appealing employee “is successful if the court awards an amount greater than zero.”44 New employee claims can arise at trial. In one case, an employee prevailed before the Labor Commissioner on claims for unpaid overtime. When the employer appealed from the ODA for a trial de novo in court, the court permitted the employee to add new claims.45 1.5.2 Complaints for retaliation The DLSE also hears complaints that a person has suffered discrimination in violation of any law under the DLSE’s jurisdiction.46 There once was a six-month deadline to bring such a complaint, but as of 2021 the deadline is now one year.47 Effective January 1, 2025, SB 399 bans discrimination against employees who decline to participate in captive audience meetings.48 This bill generally prohibits an employer from discriminating or retaliating against an employee who declines to attend a captive audience meeting where the purpose of the meeting is to communicate the employer’s opinion about religious or political matters. 1.5.3 Records inspection The Labor Code permits the DLSE to inspect the records of any “employer” to determine if the minimum wage has been paid, and to “enforce the payment of any sums found, upon examination, to be due and unpaid to the employees.”49 1.5.4 The DLSE Manual In 2002, the DLSE published a comprehensive Enforcement Policies and Interpretations Manual—available online and subject to periodic updates.50 DLSE interpretations typically favor the view of the law that is most onerous for employers. The Manual itself deserves no judicial respect, as it amounts to an “underground regulation”—an administrative pronouncement that an agency issues without giving notice of a proposed regulation and an opportunity for the public to comment.51 The Manual is very useful, however, to the extent that it summarizes opinion letters (discussed immediately below) that the DLSE has issued in specific situations. 1.5.5 DLSE opinion letters The DLSE has issued opinion letters in response to particular situations presented by individual employees and employers. The amount of judicial deference owed to DLSE opinion letters is unclear. DLSE opinion letters are advice in specific cases only. Nonetheless, California courts state that the “DLSE’s interpretation of an IWC [wage] order is entitled to great weight.”52 A court seems to adopt or reject the reasoning of a DLSE opinion letter depending on whether the court independently finds the DLSE’s reasoning persuasive.53 1.5.6 Compliance Monitoring Unit The DLSE’s Compliance Monitoring Unit (CMU) focuses on enforcing prevailing wage requirements on public works. Awarding bodies must notify the CMU, through the Public Works Chapter, each time a public works contract is awarded. 1.5.7 Labor Commission enforcement authority The Labor Commissioner can hold hearings to determine whether an employer is liable for civil penalties.54 Under legislation called “A Fair Day’s Pay Act,” the Labor Commissioner can conduct hearings to determine whether a “person acting on behalf of an employer” should be held personally liable for an employer’s violations, and can seek payment from successor employers. The Labor Commissioner can file liens on property in California for
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