Serving the Entire California Bay Area

Labor Commissioner or Court

Is it better to sue for wages owed through the California Labor Commissioner or the California Superior Court?

Employees can file their claim with the California Labor Commissioner or the Courts

In California, an employee can make a claim for minimum wage, overtime pay, expense reimbursement, meal and rest periods, and other wage & hour violations under the California Labor Code with the Office of the Labor Commissioner through the Division of Labor Standards Enforcement (DLSE).  The California Labor Commissioner also now allows employees to file a retaliation complaint against their employer, if the employer fires, demotes, suspends or takes other disciplinary action against the employee for complaining about wage & hour or safety regulations.  

An employee can also pursue their legal remedies by suing their former employer directly in California Superior Court or even Federal Court. 

Both approaches have significant advantages and disadvantages and the best approach is heavily dependent on the facts of the particular case.  It is important to emphasize that an employee’s undocumented status (i.e. no green card or work permit) does not prevent or limit their ability to pursue their employment rights either through the California Labor Commissioner, the California Courts or the Federal Courts. 


Wage & hour claims with the California Labor Commissioner

The State of California set up the office of the California Labor Commissioner to provide employees with an administrative route to pursue their wage & hour grievances.  When an employee files a claim with the California Labor Commissioner, the complaint is filed with a labor commissioner typically in the county where the employee worked or where the employer has its place of business.  After receiving the claim, the Labor commissioner holds an informal settlement conference between the parties during which the parties have an opportunity to informally discuss their case and attempt to reach a settlement.  If no settlement is reached, the Labor commissioner summarizes the claims being made by the employer, has the employee sign off on another claim form, and sets the claim for a formal hearing to determine the merits. 

The formal hearing in front of a California Labor Commissioner is more casual than a regular trial.  It resembles a small claims court hearing where the parties can tell their story (i.e. present evidence) without having to worry about being tripped up by the technicalities (such as procedural and evidentiary rules).  There are no set rules about how each hearing must be conducted so it depends on the Labor commissioner in charge but generally each party is allowed to make an opening statement, present documents and to examine as well as cross-examine witnesses.  It is important to be well prepared and to tell the truth because the testimony is audio recorded and made under oath.  If there is an appeal of the California Labor Commissioner’s decision, this testimony may be used in later court proceedings. 

The labor commissioner then issues a decision (called an Order, Decision or Award) which turns into an enforceable judgment if it is not appealed in a timely manner.  If either party makes a timely appeal of the Order, Decision or Award, then the case is tried de novo (from scratch) before a judge in California Superior Court.

Advantages of proceeding before the California Labor Commissioner:

  • Easier, quicker, and more efficient to file and prosecute.
  • The California Labor Commissioner is thought to favor the employee
  • There are no filing fees.
  • More relaxed evidentiary rules meaning that declarations and other documents normally not admissible in court are accepted (but they may have limited evidentiary value). 
  • Any appeal by employer requires the employer to post a bond in the amount of the Order, Decision or Award to prevent frivolous appeals.

Disadvantages of proceeding before the California Labor Commissioner:

  • Only wage & hour and retaliation claims can be included (i.e. no discrimination, harassment, or personal injury claims).
  • Claims can only be made for wage & hour claims dating three years prior to the time of filing of the claim.
  • Group claims are not allowed and each individual claim is determined separately.
  • Discovery is not allowed or very limited so there is little room to obtain evidence from the other side and third parties.
  • There is no right to attorney’s fees for any proceedings before the labor commissioner.
  • Any decision can be appealed to the Superior Court resulting in a new trial and further delays (though the employer must post a bond in the amount of the Order, Decision, or Award).


Wage & hour claims filed in California Superior Court or Federal Court

Filing a lawsuit over wage & hour issues in California Superior Court is similar to filing any other lawsuit.  The employee must file a complaint, pay filing fees, engage in discovery with the employer to exchange information and documents related to the claims, take or submit to a deposition, file and defend against motions, and trying the dispute.  The process is lengthy, complex, but also more flexible and thorough than a claim with the California Labor Commissioner.  An employee can make claims for violations of California and Federal laws in the California Superior Court. 

Some wage & hour claims can also be filed in Federal Court.  The Federal Court system is generally believed to be faster and more efficient that the California State Courts because the judges keep tight control of the case and are more proactive when either party gets out of line.  Attorneys representing employers frequently file wage & hour cases in Federal Court when they can allege a solid violation of Federal Law especially when their local Superior Court is clogged with litigation and short on funds.


Advantages of proceeding in Court:

  • Wage & hour claims can be combined with other claims (discrimination, harassment, or personal injury etc.)
  • Multiple employees can join the same lawsuit to bolster each other’s claims.
  • Claims can only be made for wage & hour claims dating four years prior to the time of filing of the claim (one year longer than before the California Labor Commissioner).
  • Discovery is allowed to obtain evidence from the other side and third parties.
  • There is a right to attorney’s fees for a prevailing employee which puts additional pressure on the employer to settle claims. 
  • Judgments of the Superior Court can be appealed but this happens much less frequently than an Order, Decision, or Award by the California Labor Commissioner.

Disadvantages of proceeding in Court:

  • The parties must pay filing fees (between $370 and $450).
  • The process is longer, complex and cumbersome and parties usually need an experienced attorney to navigate it.
  • Evidentiary rules are much more strict which means that some documents or witness statements may not be considered by the court.


Generally speaking, filing a claim through the California Labor Commissioner is more advantageous in smaller wage & hour cases and suing in Court is the better choice in cases where a higher award is being sought or where there are significant other claims in addition to wage & hour claims.  However, whether you are prosecuting or defending an action in court or before the labor commissioner, it is in your best interests to consult with a knowledgeable attorney to maximize recovery if you are an employee or defend against an unmeritorious claim if you are an employer. 

Your first consultation with us is always FREE.  We take on meritorious employment cases on behalf of employees on a contingency basis, meaning that employees do not have to pay us an hourly rate, and that we get paid only if you win.

Areas of Practice

Zurada Law Group stands ready to assist you in the following areas:

If you are in need of a California lawyer serving the Bay Area the first consultation with our office is always FREE, so please either telephone or fill out the contact form.

San Francisco Lawyer 360