Berman hearing in California

2021It states that the [C]ommissioner “shall have the authority to investigate employee complaints.” [Citation.] The 6 [C]ommissioner “may provide for a hearing in any action to recover wages, penalties, and other demands for compensation.” [Citation.] [¶] . . . [¶] If the [C]ommissioner decides to accept the matter and conduct an administrative hearing—commonly known as a “Berman hearing” after the name of its sponsor, then Assemblyman Howard Berman— he or she must hold the hearing within 90 days . . . .’ [Citation.] ‘The Berman hearing procedure is designed to provide a speedy, informal, and aff

2021It states that the [C]ommissioner “shall have the authority to investigate employee complaints.” [Citation.] The 6 [C]ommissioner “may provide for a hearing in any action to recover wages, penalties, and other demands for compensation.” [Citation.] [¶] . . . [¶] If the [C]ommissioner decides to accept the matter and conduct an administrative hearing—commonly known as a “Berman hearing” after the name of its sponsor, then Assemblyman Howard Berman— he or she must hold the hearing within 90 days . . . .’ [Citation.] ‘The Berman hearing procedure is designed to provide a speedy, informal, and aff

2025(Ibid.; Cuadra v. Millan (1998) 17 Cal.4th 855, 858 (Cuadra).) Iloff argues here that, pursuant to Cuadra, the filing of the Initial Report or Claim form initiates the Berman hearing procedure.

2025(Ibid.; Cuadra v. Millan (1998) 17 Cal.4th 855, 858 (Cuadra).) Iloff argues here that, pursuant to Cuadra, the filing of the Initial Report or Claim form initiates the Berman hearing procedure.

2025(Sonic II, supra, 57 Cal.4th at p. 1128 .) The Berman hearing procedure is designed to provide a speedy, informal, and affordable method of resolving wage claims.

2025(Sonic II, supra, 57 Cal.4th at p. 1128 .) The Berman hearing procedure is designed to provide a speedy, informal, and affordable method of resolving wage claims.

2025(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 121 (OTO); see also ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 186 .) If the employee elects the latter, the labor commissioner may accept the matter and conduct a Berman hearing, prosecute a civil action for collection of wages, or take no further action on the complaint. (§ 98, subd. (a); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1115 (Murphy).) Before conducting the hearing or pursuing a civil action, the commissioner’s staff may attempt to settle the claims informally or through a conference between the parties.

2025(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 121 (OTO); see also ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 186 .) If the employee elects the latter, the labor commissioner may accept the matter and conduct a Berman hearing, prosecute a civil action for collection of wages, or take no further action on the complaint. (§ 98, subd. (a); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1115 (Murphy).) Before conducting the hearing or pursuing a civil action, the commissioner’s staff may attempt to settle the claims informally or through a conference between the parties.

2025In Sonic II, supra, 57 Cal.4th 1109 , the court reconsidered its earlier opinion in Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 , concluding in light of intervening United States Supreme Court authority that the Federal Arbitration Act preempted a categorical California rule prohibiting employers from requiring employees, as a condition of their employment, to waive their right to a Berman hearing.

2025In Sonic II, supra, 57 Cal.4th 1109 , the court reconsidered its earlier opinion in Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 , concluding in light of intervening United States Supreme Court authority that the Federal Arbitration Act preempted a categorical California rule prohibiting employers from requiring employees, as a condition of their employment, to waive their right to a Berman hearing.

2021(See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 , 351 (Concepcion) [“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons”]; see also Preston v. Ferrer (2008) 552 U.S. 346, 356 [California Labor Code section giving Labor Commissioner exclusive original jurisdiction over certain disputes “conflict[ed] with the FAA’s dispute resolution regime” by “grant[ing] the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agree to arbitrate”]; Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1124 [ho

2019(Citing Elijahjuan v. Superior Court (2012) 210 Cal.App.4th 15 , 17, 21, 147 Cal.Rptr.3d 857 [finding that workers' claims seeking to enforce rights arising under Labor Code were outside scope of arbitration provision where provision applied "only to disputes regarding the 'application or interpretation' of the parties' contracts"].) In a previous decision in that case, Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 , 121 Cal.Rptr.3d 58 , 247 P.3d 130 ( Sonic I ), our Supreme Court had "held as a categorical rule that it is contrary to public policy and unconscionable for an employer

2019(See Cuadra v. Millan, supra, 17 Cal.4th at p. 863 [affirming judgment directing the Labor Commissioner to change 15 its policy “for all claims processed” under the Berman hearing process by any office of the Labor Commissioner and not finally resolved as of the date of the court’s order granting the writ], disapproved on other grounds by Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4 .) Thus, regardless of the Labor defendants’ writings and statements, Supershuttle has the right to seek an answer to the question whether collateral estoppel applies to these claims. 2.

2019(See Cuadra v. Millan, supra, 17 Cal.4th at p. 863 [affirming judgment directing the Labor Commissioner to change 15 its policy “for all claims processed” under the Berman hearing process by any office of the Labor Commissioner and not finally resolved as of the date of the court’s order granting the writ], disapproved on other grounds by Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4 .) Thus, regardless of the Labor defendants’ writings and statements, Supershuttle has the right to seek an answer to the question whether collateral estoppel applies to these claims. 2.

2019(Armendariz, supra, 24 Cal.4th at p. 113 .) As the majority explains, this payment obligation “mitigates the unfairness of expecting that [Kho] bear costs of a procedure to which [he was] required to agree.” (Maj. opn., ante, at p. 29, italics added.) So it turns out that the majority’s only real concern about costs relates to “[a]ttorney fees,” which, says the majority, are “different” from other costs “because they are not unique to arbitration.” (Maj. opn., ante, at pp. 26-27.) According to the majority, “employees can secure free legal assistance from the Labor Commissioner, both at the Be

2019(Armendariz, supra, 24 Cal.4th at p. 113 .) As the majority explains, this payment obligation “mitigates the unfairness of expecting that [Kho] bear costs of a procedure to which [he was] required to agree.” (Maj. opn., ante, at p. 29, italics added.) So it turns out that the majority’s only real concern about costs relates to “[a]ttorney fees,” which, says the majority, are “different” from other costs “because they are not unique to arbitration.” (Maj. opn., ante, at pp. 26-27.) According to the majority, “employees can secure free legal assistance from the Labor Commissioner, both at the Be

2021(See Preston, supra, 552 U.S. at p. 359, fn. 7 .) That the Labor Commissioner may hold “an investigative hearing” as part of the determination process does not compel a contrary conclusion. (§ 98.7, subd. (b)(1).) Unlike the Berman hearing—which is a prerequisite for relief from the Commissioner—a hearing is not required in the determination process and, in fact, “rarely” occurs.

2021(See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 , 351 (Concepcion) [“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons”]; see also Preston v. Ferrer (2008) 552 U.S. 346, 356 [California Labor Code section giving Labor Commissioner exclusive original jurisdiction over certain disputes “conflict[ed] with the FAA’s dispute resolution regime” by “grant[ing] the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agree to arbitrate”]; Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1124 [ho

2013(See Lolley v. Campbell (2002) 28 Cal.4th 367, 376 [ 121 Cal.Rptr.2d 571 , 48 P.3d 1128 ] (Lolley).) Third, section 98.2, subdivision (c) provides that an employee will not be saddled with the employer’s attorney fees and costs unless the employee appeals from a Berman hearing award and receives a judgment of zero on appeal.

2013(See Lolley v. Campbell (2002) 28 Cal.4th 367, 376 [ 121 Cal.Rptr.2d 571 , 48 P.3d 1128 ] (Lolley).) Third, section 98.2, subdivision (c) provides that an employee will not be saddled with the employer’s attorney fees and costs unless the employee appeals from a Berman hearing award and receives a judgment of zero on appeal.

2025(OTO, supra, 8 Cal.5th at p. 119 .) The employee requested a Berman hearing, 1 but the employer filed a petition to compel arbitration and stay the administrative proceedings.

2025(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 121 (OTO); see also ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 186 .) If the employee elects the latter, the labor commissioner may accept the matter and conduct a Berman hearing, prosecute a civil action for collection of wages, or take no further action on the complaint. (§ 98, subd. (a); Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1115 (Murphy).) Before conducting the hearing or pursuing a civil action, the commissioner’s staff may attempt to settle the claims informally or through a conference between the parties.

2018As discussed post , a section 98.2"notice of appeal is the statutory prerequisite for obtaining a trial de novo in superior court; although an 'appeal' and 'trial de novo' are distinct concepts, in this context the terms are often used interchangeably ...." ( Palagin v. Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124 , 127, 165 Cal.Rptr.3d 612 ( Palagin ).) If an employer does not pay wages in the amount, time, or manner required by contract or statute, an employee may file an unpaid wage claim with the Commissioner pursuant to section 98 et seq. and obtain an administrative hearing (kn

2018As discussed post , a section 98.2"notice of appeal is the statutory prerequisite for obtaining a trial de novo in superior court; although an 'appeal' and 'trial de novo' are distinct concepts, in this context the terms are often used interchangeably ...." ( Palagin v. Paniagua Construction, Inc. (2013) 222 Cal.App.4th 124 , 127, 165 Cal.Rptr.3d 612 ( Palagin ).) If an employer does not pay wages in the amount, time, or manner required by contract or statute, an employee may file an unpaid wage claim with the Commissioner pursuant to section 98 et seq. and obtain an administrative hearing (kn

2014(Sonic II, supra, 57 Cal.4th at p. 1124 .) In Sonic II, the California Supreme Court overturned Sonic I’s categorical prohibition against Berman hearing waivers based on AT&T Mobility’s “precept that ‘efficient streamlined procedures’ is a fundamental attribute of arbitration with which state law may not interfere.” (Sonic II, supra, 57 Cal.4th at p. 1140 .) The Sonic II court 9 explained, “Because a Berman hearing causes arbitration to be substantially delayed, the unwaivability of such a hearing, even if desirable as a matter of contractual fairness or public policy, interferes with a fundam

2014(Sonic II, supra, 57 Cal.4th at p. 1124 .) In Sonic II, the California Supreme Court overturned Sonic I’s categorical prohibition against Berman hearing waivers based on AT&T Mobility’s “precept that ‘efficient streamlined procedures’ is a fundamental attribute of arbitration with which state law may not interfere.” (Sonic II, supra, 57 Cal.4th at p. 1140 .) The Sonic II court 9 explained, “Because a Berman hearing causes arbitration to be substantially delayed, the unwaivability of such a hearing, even if desirable as a matter of contractual fairness or public policy, interferes with a fundam

2019In this regard, the majority’s analysis and conclusion are inconsistent with the Sonic II majority’s many statements and assurances regarding the enforceability of arbitration agreements in this context, especially its statement that a finding of substantive unconscionability may not be “premised on the [purported] superiority of the Berman hearing as a dispute resolution forum.” (Sonic II, supra, 57 Cal.4th at p. 1149 .) The majority here essentially ignores the Sonic II majority’s statements, proclaiming that “the question” here “[u]ltimately” is whether Kho “was coerced or misled into makin

2019In this regard, the majority’s analysis and conclusion are inconsistent with the Sonic II majority’s many statements and assurances regarding the enforceability of arbitration agreements in this context, especially its statement that a finding of substantive unconscionability may not be “premised on the [purported] superiority of the Berman hearing as a dispute resolution forum.” (Sonic II, supra, 57 Cal.4th at p. 1149 .) The majority here essentially ignores the Sonic II majority’s statements, proclaiming that “the question” here “[u]ltimately” is whether Kho “was coerced or misled into makin

2021(See Sonic II, at p. 1142 [holding that the FAA does not permit “additional delay that results from . . . an administrative scheme [like the Berman hearing process] to effectuate state policies unrelated to the agreement’s enforceability”].) By contrast, the California Supreme Court refused to enforce an arbitration agreement under the FAA when the employee is “enforcing our labor laws on behalf of state law enforcement agencies.” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 388 (Iskanian).) In Iskanian, our state high court considered whether the FAA restricts the a

2021(See Sonic II, at p. 1142 [holding that the FAA does not permit “additional delay that results from . . . an administrative scheme [like the Berman hearing process] to effectuate state policies unrelated to the agreement’s enforceability”].) By contrast, the California Supreme Court refused to enforce an arbitration agreement under the FAA when the employee is “enforcing our labor laws on behalf of state law enforcement agencies.” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 388 (Iskanian).) In Iskanian, our state high court considered whether the FAA restricts the a

2022Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62 [“a private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right”].) Plaintiffs argue a private right of action must be read into the statute because subdivision (a) of section 248.5 references various statutes by which the Labor Commissioner may enforce the Healthy Workplaces, Healthy Families Act, including section 98, the Berman hearing process.

2022Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62 [“a private right of action exists only if the language of the statute or its legislative history clearly indicates the Legislature intended to create such a right”].) Plaintiffs argue a private right of action must be read into the statute because subdivision (a) of section 248.5 references various statutes by which the Labor Commissioner may enforce the Healthy Workplaces, Healthy Families Act, including section 98, the Berman hearing process.

2019Moreover, administrative mandate applies only to the results of "a proceeding in which by law a hearing is required to be given ...." ( Ibid ., italics added; see *140 Keeler v. Superior Court (1956) 46 Cal.2d 596 , 598-599, 297 P.2d 967 .) There is no requirement that a Berman hearing be held on a wage complaint.

2019Moreover, administrative mandate applies only to the results of "a proceeding in which by law a hearing is required to be given ...." ( Ibid ., italics added; see *140 Keeler v. Superior Court (1956) 46 Cal.2d 596 , 598-599, 297 P.2d 967 .) There is no requirement that a Berman hearing be held on a wage complaint.

2014(Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 671-672 (Sonic), judgment vacated and case remanded on another ground (2011) 565 U.S. ___ [ 132 S.Ct. 496 ]; Murphy v. Kenneth Cole Productions (2007) 40 Cal.4th 1094 , 1114- 1115 (Murphy).) Within 90 days, the Commissioner may proceed with the employee’s wage claim by way of an administrative “Berman hearing,” conducted by a deputy commissioner.

2014(Sonic-Calabasas A, Inc. v. Moreno (2011) 132 S.Ct. 496 .) On October 17, 2013—long after the Berman hearing here—the California Supreme Court issued Sonic-Calabasas II, supra, 57 Cal.4th 1109 , holding that the FAA preempted the categorical imposition of a Berman hearing requirement because it would create significant delays in the commencement of 10 arbitration, in contravention of the FAA’s objectives.

2023(OTO, L.L.C. v. Kho, supra, 8 Cal.5th at p. 136 ; see Sanchez, supra, 61 Cal.4th at p. 911 .) OTO, L.L.C. v. Kho, supra, 8 Cal.5th 111 , provides significant guidance on how to evaluate the agreement here because it involved the fairness of an agreement, strikingly similar to the one at issue here, that was used to try and compel the arbitration of an employee’s wage claims in lieu of a Berman hearing.

2023(OTO, L.L.C. v. Kho, supra, 8 Cal.5th at p. 136 ; see Sanchez, supra, 61 Cal.4th at p. 911 .) OTO, L.L.C. v. Kho, supra, 8 Cal.5th 111 , provides significant guidance on how to evaluate the agreement here because it involved the fairness of an agreement, strikingly similar to the one at issue here, that was used to try and compel the arbitration of an employee’s wage claims in lieu of a Berman hearing.

2019Two months later, on a related question, Concepcion , supra , 563 U.S. 333 , 131 S.Ct. 1740 abrogated our holding from Discover Bank v. Superior Court (2005) 36 Cal.4th 148 , 30 Cal.Rptr.3d 76 , 113 P.3d 1100 that class arbitration waivers in consumer contracts are unconscionable. ( Concepcion , at pp. 341-344, 131 S.Ct. 1740 .) The high court explained that the "overarching purpose of the FAA ... is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings." ( Id . at p. 344, 131 S.Ct. 1740 .) Because Discover Bank 's classwide ar

2013(Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 671-672 [ 121 Cal.Rptr.3d 58 , 247 P.3d 130 ] (Sonic), judgment vacated and case remanded on another ground (2011) 565 U.S. _ [ 181 L.Ed.2d 343 , 132 S.Ct. 496 ]; Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114-1115 [ 56 Cal.Rptr.3d 880 , 155 P.3d 284 ] (Murphy).) Within 90 days, the Commissioner may proceed with the employee’s wage claim by way of an administrative “Berman hearing,” conducted by a deputy commissioner.

2025Therefore, it limited Sampson’s fees to those incurred during the trial de novo” (Sampson, at p. 216), having no occasion to comment on the entirely separate question whether a trial de novo in superior court was a “civil action.” Equally important, perhaps, on multiple occasions in the body of the opinion the Sampson court was careful to frame its conclusions by reference to costs and fees incurred in the “administrative proceedings” or in the “administrative forum.”7 (See, e.g., id. at p. 222 [“our task here is to construe section 1194 to determine whether it also applies to 7 Thus, when the

2025Therefore, it limited Sampson’s fees to those incurred during the trial de novo” (Sampson, at p. 216), having no occasion to comment on the entirely separate question whether a trial de novo in superior court was a “civil action.” Equally important, perhaps, on multiple occasions in the body of the opinion the Sampson court was careful to frame its conclusions by reference to costs and fees incurred in the “administrative proceedings” or in the “administrative forum.”7 (See, e.g., id. at p. 222 [“our task here is to construe section 1194 to determine whether it also applies to 7 Thus, when the

2019(See Sonic II , supra , 57 Cal.4th at p. 1164 , 163 Cal.Rptr.3d 269 , 311 P.3d 184 ["arbitrators have discretion to decide on features of arbitration that are not specified in the agreement"]; Sanchez v. Western Pizza Enterprises , Inc. (2009) 172 Cal.App.4th 154 , 177, 90 Cal.Rptr.3d 818 ["An arbitrator ordinarily has broad discretion with respect to the procedures and law governing the arbitration"].) Fifth, the majority's discussion of the relative ease of initiating arbitration and the Berman procedure is faulty in several respects.

2019(See Sonic II , supra , 57 Cal.4th at p. 1164 , 163 Cal.Rptr.3d 269 , 311 P.3d 184 ["arbitrators have discretion to decide on features of arbitration that are not specified in the agreement"]; Sanchez v. Western Pizza Enterprises , Inc. (2009) 172 Cal.App.4th 154 , 177, 90 Cal.Rptr.3d 818 ["An arbitrator ordinarily has broad discretion with respect to the procedures and law governing the arbitration"].) Fifth, the majority's discussion of the relative ease of initiating arbitration and the Berman procedure is faulty in several respects.

2019(Citing Elijahjuan v. Superior Court (2012) 210 Cal.App.4th 15 , 17, 21, 147 Cal.Rptr.3d 857 [finding that workers' claims seeking to enforce rights arising under Labor Code were outside scope of arbitration provision where provision applied "only to disputes regarding the 'application or interpretation' of the parties' contracts"].) In a previous decision in that case, Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 , 121 Cal.Rptr.3d 58 , 247 P.3d 130 ( Sonic I ), our Supreme Court had "held as a categorical rule that it is contrary to public policy and unconscionable for an employer

2019(Citing Elijahjuan v. Superior Court (2012) 210 Cal.App.4th 15 , 17, 21, 147 Cal.Rptr.3d 857 [finding that workers' claims seeking to enforce rights arising under Labor Code were outside scope of arbitration provision where provision applied "only to disputes regarding the 'application or interpretation' of the parties' contracts"].) In a previous decision in that case, Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 , 121 Cal.Rptr.3d 58 , 247 P.3d 130 ( Sonic I ), our Supreme Court had "held as a categorical rule that it is contrary to public policy and unconscionable for an employer

2017(See McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368 , 375, 212 Cal.Rptr.3d 431 [matter is moot when the court cannot grant effective relief].) We accordingly affirm the trial court's order vacating the ODA.

2017(See McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368 , 375, 212 Cal.Rptr.3d 431 [matter is moot when the court cannot grant effective relief].) We accordingly affirm the trial court's order vacating the ODA.