Legal Question in Employment Law in California
To whom it may concern, I had a 1099 contractor chef (could be argued that he was mischaracterized, I believe he was not) who filed an unpaid wages claim after the termination of his contract (my business bankrupt).
I have 2 questions:
1. He simultaniously filed a work-related injury disability claim as well. So he claims to WCAB that he was injured and could not work and to the Labor Board that he was working, in fact worked overtime, and did not get paid. Do I have to subpoena the WCAB record or can I just simply present his WCAB complaint for injuries to show that at least one of his cliams must be fraudulent (I know that both of his claims are)?
2. The Labor Comissioner did not comply with the notice requirements of Section 98: did not notify me in 30 days from the filing of the complaint that a hearing will be held and the hearing is set for way more than 90-day from the determination that a hearing will be held. Does the complaint barred from further proceedings due to these violation? (the statute language is "shall" everywhere). Should I put it in my Answer as affirmative defense or is there such a thing as "motion for dismissal" or "motion for judgment on the pleadings" in Labor Commissioner complaint? Thank you so much in advance. I only have 10 days to answer.
1 Answer from Attorneys
1. The WCAB complaint should be sufficient to establish admissions that the chef was supposedly injured, and to raise doubts about the chef's Labor Board claim. You may nevertheless want to get whatever records from the WCAB claim that you can, to see if there is anything else there worth presenting.
2. You do not have any motion to dismiss or otherwise get out of the claim, based simply on the fact that the Labor Commission missed some of its own deadlines.
Best of luck to you.
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