The Appeal Of Uber – Research Headlights Directed At California Labor Commissioner ODAs

Uber Appeals California Labor Commissioner Decision to San Francisco Superior Court

Introduction

The recent ruling by the California Labor Commissioner in the case of a single Uber driver could have much broader implications for the ride-hailing service and other companies that rely on workers they categorize as independent contractors.  The California Labor Commissioner has ruled that an Uber driver, Barbara Berwick, should be considered a company employee, not an independent contractor, and therefore is entitled to $4,000 in mileage and toll expenses because her services were “integral.”  This ruling only came to public notice because Uber filed an appeal of the Labor Commissioner’s Order, Decision or Award (“ODA” aka DLSE Form 535) in the San Francisco Superior Court.  The papers, including the ODA, filed in the Berwick case appeal can be read here – Ubersappeal_labor_commiss_june2015.

As the following discussion highlights, California Labor Commission hearings and rulings are relatively informal proceedings.  The ODAs are not published in an organized fashion as many of the other California uber_logoadministrative agency rulings are.

While many commentators have shared their opinions on the Berwick case (including mashable.com), this post will be looking at these events from a legal researcher’s point of view.

Background information about the California Labor Commissioner’s office

The California Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), was established to adjudicate wage claims, investigate discrimination and public works complaints, and enforce Labor Code statutes and Industrial Welfare Commission orders.  The chief executive of the DLSE is known as the Labor Commissioner.  The DLSE is an office within the California Department of Industrial Relations (DIR). (CA DIR organization chart here)   The Department of Industrial Relations, headed by a Director of Industrial Relations, includes many divisions in addition to the Labor Commissioner’s Office including: Cal/OSHA, the Division of Workers’ Compensation, the Division of Apprenticeship Standards, six boards, commissions and programs.  The DIR is a department within the California Labor & Workforce Development Agency overseen by the agency Secretary who reports to the Governor.  The Labor Commissioner is appointed by the Governor to serve as Chief of DLSE.

The web page for the Labor Commissioner provides a number of links to miscellaneous topics on various topics but no link to on-line files of ODAs.

Labor Commissioner investigations & hearings – A simple outline

 Claim is filed An initial report or claim is filed by an employee or his or her representative.  Four major categories of claims include:  discrimination or retaliation complaint, wage claims (failure to pay overtime or benefits), labor law violations, and public work complaints. (See links below for filing information.)  These are the major categories but the DLSE has responsibility for an extensive range of issues within the state.

Investigation begins Once a claim is filed, the staff will then begin to investigate and take any appropriate action. The Labor Commissioner’s Office has 30 days to inform the employee and employer whether further action will be taken.  The Labor Commissioner’s staff has unlimited access to all workplaces within California. Failure to cooperate or provide access and information may result is a misdemeanor offense.

Actions Depending on the issues raised by the investigation, the staff member will notify the parties as to the specific action that will be initially taken:

1) dismissal of claim  (no further action will be taken)

2) Labor Commissioner can file a civil suit against the employer

3) referral to a hearing

4) referral to a conference

Many cases will be resolved, informally, before either a conference or hearing is scheduled.

Informal conference and/or hearing If referral to a conference is made, the conference (Labor Code 98.3) will be conducted (you guessed it) informally and parties will not be under oath.  If a hearing (Labor Code Sections 98(a)) is scheduled because the matter failed to be resolved at the conference, it may be held in an informal setting but they are formal proceedings.  It is generally conducted in a conference room, not a courtroom, and is held before the hearing officer, not a judge.  Parties and witnesses testify under oath and the proceedings are recorded.  Each party may call witnesses and present evidence. Hearings lasting more than a few hours are rare.

Labor Commissioner’s Decision ODA Following the hearing, the Labor Commissioner will issue a written Order, Decision or Award  on the matter within 15 days.  As with a normal civil case, the commissioner’s decision can award the employee all, some, or none of the sought-after relief.  The decision must include a statement of reasons supporting the result.

Appeal The Labor Commissioner’s decision must apprise the parties of their right to appeal the decision. If no appeal is taken, the Commissioner’s decision becomes final. If either party wishes to appeal, they must do so within 10 days of the Commissioner’s service of the decision (Labor Code 98.2). The appeal does not get submitted to another level of Labor Commissioner/DLSE review; instead, the matter is heard “de novo” in the appropriate California superior court. (In the Berwick matter, it was the San Francisco Superior Court.) De novo review means that the matter is independently addressed by the superior court, and no deference is given to the Labor Commissioner’s ruling.

A special Notice of Appeal form (DLSE-537) and a California Judicial Council form CM-010 must be filed.

More detailed information about the procedures for filing claims with the California Labor Commissioner can be found at:

For an easy to follow discussion of how to appeal a decision by the California Labor Commission see:

ODA compilations  These decisions are not generally available through Westlaw or Lexis.

  • WestlawNext (WLN) and Lexis Advance have limited holdings of  DLSE actions.  None for the current year.  Available by using the public research terminals at Alameda County Law Library, the WLN Trial Documents files provides selected filings for the appeals that have been filed with a Superior Court
  • A search on the Internet for “DLSE 535” will bring up some examples of these decisions  but only ones that have been uploaded to the web by a party involved.  The official DLSE form used by staff to issue an Order, Decision or Award is numbered “DLSE 535” at the bottom.  The form is not available on the DLSE Forms public website
 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Links for filing a claim with the California Labor Commissioner
Filing and procedure for a discrimination or retaliation complaint
Wage claims
Public Work complaints
Labor law violations
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