Robert Tollen Published in The Recorder

Robert's article, "Pity the Labor Commissioner," published in the May 12 issue of The Recorder, addresses the problems associated with the CA Division of Labor Standards Enforcement (DLSE):

[Note: This is a condensed version of the full article as it appeared in The Recorder.]

"California's Labor Code authorizes the labor commissioner, chief of the Division of Labor Standards Enforcement, to conduct hearings and issue decisions on complaints for wages, penalties and other demands for compensation. The labor commissioner delegates that authority to deputy labor commissioners, referred to as "hearing officers." There are approximately 30 to 40 hearing officers in 18 offices. They conduct 10,000 hearings a year and award approximately $50 million in backpay and penalties. Hearing officers decide the order in which hearings are conducted. They rule on what evidence will be admitted. They decide which witnesses to believe. They resolve disputed issues of fact. They also resolve disputed issues of law. Although they interpret the law, they are not attorneys. 

"Labor commissioner hearings can raise difficult issues of law. Hearing officers interpret and apply the legal standards for determining whether an employee qualifies for executive, administrative or professional exemption from overtime, or for the outside sales exemption, or for other, sometimes arcane, exemptions. In the experience of this practitioner, DLSE hearing officers have decided whether the additional hour of pay imposed for violating meal and rest period requirements is a penalty or compensation; whether §301 of the Labor-Management Relations Act pre-empts a claim for waiting-time penalties; whether the professional exemption requires a bachelor's degree or a master's; and whether a defense that would, if successful, preclude finding a violation is a defense to waiting-time penalties. DLSE's hearing officers are not qualified to make those decisions, but they do. Their decisions too often reflect ignorance of the legal principles before them.  Decisions of DLSE hearing officers are issued in the name of the labor commissioner. Amazingly, the labor commissioner has no knowledge of the decisions or control over them. There is no system for decisions to be funneled to the labor commissioner. He or she does not review them. Even if the labor commissioner knew about a decision, there would be no way to disagree or change it.

"Decisions of hearing officers are mailed to the parties, but they are not published. The labor commissioner is not the only one unaware of them. The public knows nothing about them. Attorneys representing parties cannot research whether the same issues arose in earlier hearings. Most importantly, the hearing officers themselves know nothing about the decisions of their fellow hearing officers. There is nothing to prevent two hearing officers from reaching inconsistent conclusions on the same legal question. The labor commissioner could effect that change without legislation. The authority to conduct hearings is vested in the labor commissioner, not in the deputies. For years, the labor commissioner has delegated the authority to deputies. The labor commissioner could withdraw delegation of authority to issue final decisions and direct hearing officers to issue recommended decisions. They would not become final until the labor commissioner issued them. As presently operated, the Office of the Labor Commissioner is the saddest office imaginable. There is little or no control over the decision makers who act in the name of the labor commissioner. The labor commissioner exercises merely the power to make pronouncements and to hope subordinates will follow them. Yet, the labor commissioner is obligated to defend their decisions in court no matter how hopelessly wrong or contrary to his or her interpretation of the law. This situation is not the doing of any recent labor commissioner, Democratic or Republican. It just grew that way, but it should be fixed."