DLSE Conferences Today & Tomorrow

From what commenters have said, there are several conferences scheduled today with the California Labor Commission – in San Diego and San Jose from what I recall.  These are a result of wage claims filed for accrued vacation and non-payment of wages at the time of termination.

If you have a conference scheduled, can you please add your comments as to what occurred (next steps, if anyone appeared on behalf of Heller Ehrman, etc.) and what was the end result.  Or you can email me at hellerdrone@gmail.com and I will keep this post updated during the next few days.


17 Responses to “DLSE Conferences Today & Tomorrow”

  1. 1 Former Associate 18 December 2008 at 1:32 pm

    I go tomorrow. Hopefully I will have something to report, which I will dutifully do here. Good luck to all.

  2. 2 SV Refugee 18 December 2008 at 5:15 pm

    Had a conference today in San Jose. Uneventful for the most part. Jonathan Hayden attended, along with the Dissolution Committee’s outside counsel. Hayden said that the committee did not dispute its obligation to pay out our vacation, but that the banks would not authorize the payments. The DLSE rep went through my claim, and Hayden/counsel did not dispute it. A hearing will be scheduled at some point down the line; likely February. Hayden said the committee would not contest the claim for pay at the hearing, but would likely contest penalties, since their failure to pay was not “willful.”

    The DLSE rep brought up the class action. Apparently, an amended complaint has been filed. Drone, do you have a copy?

  3. 3 Former Associate 18 December 2008 at 6:08 pm

    Thanks Refugee, that’s very useful information.

  4. 4 Jeff Richmond 18 December 2008 at 11:26 pm

    I do not know what specific authority supports this FAQ on the DLSE’s website, but it seems pertinent to the Committee’s claim that penalties should not be assessed:

    Q. I was discharged last week and not paid all my wages. At the time I was discharged my former employer informed me that he could not pay me because he didn’t have the money. Will this be a valid defense to my claim for the waiting time penalty?

    A. No, it will not be a valid defense. Inability to pay is not a defense to the failure to timely pay wages under Labor Code Sections 201, 201.5, 202, and 202.5, and does not relieve the employer from liability of the waiting time penalty under Labor Code Section 203.

    This may be worth mentioning at conferences/hearings.

  5. 5 SV Refugee 19 December 2008 at 12:40 am

    The Cal. Code of Regulations defines “willful,” as used in the Labor Code, as the intentional failure to pay. The lone exception occurs where there is a “good faith dispute” as to whether or not any wages are owed by the former employer. There is no “good faith dispute” here, since Heller is acknowledging it’s on the hook for vacation pay. Hayden’s statement was just posturing, because the “woe is us, the bank won’t let us do anything” defense is not going to fly. Unfortunately, this won’t matter if there’s no money left at the end of the day.

  6. 6 anon2 19 December 2008 at 1:06 am

    Jon Hayden’s response is no surprise. Typical Heller nonspeak mumbo jumbo – it’s always not their fault. Give me a break. What if I told the IRS that “my bank won’t let me pay you” or “there is no money”…when I am required by law to pay them what I owe them. do you think they would care? or drop it? God, it’s hard to believe this is once the mighty Heller Erhman. Pitiful and disgraceful.

  7. 7 Former HE Assoc 19 December 2008 at 2:11 am

    It is indeed sad how low the former parters have chosen to go. I was volunteering at a local charity in SF the other day and saw Heller Ehrman’s name on the list of donors/supporters. It was one of the two or three law firms up there. Heller was an amazing place with an amazing spirit–but its spirit was slowly killed in the last few years. So it is not surprising that Hayden et al. are acting the way they are now. Hayden needs to man up and admit that, while the firm may have owed Citi and BofA millions, it is not really the banks’ fault that HEWM didn’t pay its loyal employees what they were due under the LAW.

    Heller, Ehrman, White and McAuliffe are all rolling in their graves right now.

    Given the current political, economic, social mood in this country, it was not the best time for these former partners to have f***ed around with us. They have plenty of cash as individuals. I cannot wait to see Hayden, Fram, Plimack, Haslam et al held accountable. And they will be. These guys knew what they were doing. You can’t break the law and get away with it. They won’t get away with it. Justice may be slow, but when it arrives there is no escaping it.

  8. 8 Thomas MacEntee 19 December 2008 at 10:28 am

    Question: are there any SF conferences scheduled at all? If the conferences with the California Labor Commission/DLSE are only for those in the SV and SD offices, then I have this theory:

    there are no valid WARN Act claims for SV and SD workers since the number of layoffs is below 50 for each office. The California version of the WARN Act requires 50 or more employees to be laid off at a location in order to qualify.

    If that is the case, then it makes sense that hearings would be held on just the accrued vacation, late/non-payment of wages and penalties.


  9. 9 Former Associate 19 December 2008 at 1:00 pm

    I think there were at least 50 people in the SD office at the time the WARN Act notice memo was circulated. Many of the associates and staff who ultimately left for Covington and elsewhere were still employed at the time.

  10. 10 SV Refugee 19 December 2008 at 1:09 pm

    I think the same goes for the SV office. In any case, the CA WARN Act (Labor Code 1400-1408) covers all “mass layoffs,” “relocations,” and “terminations.” A “termination” is “the cessation or substantial cessation of industrial or commercial operations” in a workplace or a facility with 75 or more people. Seems to me both offices would be covered, but understand that I’m just reading the statute, and don’t have access to any case law that interprets the statute.

  11. 11 Wage Claimer 19 December 2008 at 5:39 pm

    I think it’s more likely that the SF DLSE office has just been slower in dealing with the claims than any WARN Act issues. There had to be more claims in SF than in the SD or SV offices so maybe its just a logistical issue in dealing with more claims. Someone from SF should call the office and check on the status of their claim.

    FWIW, I had my conference in SV yesterday and I didn’t make any WARN Act claims on my wage claim form.

  12. 12 Wage Claimer 19 December 2008 at 5:45 pm

    Also, I think that the relevant number of employees to trigger the WARN Act is based on the date of the announcement of the layoffs. In this case that was Sep. 26, when the dissolution was announced and the WARN Act notice was sent out.

  13. 13 SD Wage Claimer 20 December 2008 at 2:52 pm

    I think there is some confusion here. The DLSE does not handle WARN act violations, those have to be resolved in a civil suit.

    The Deputy Commissioner in San Diego told us yesterday that the SF Deputy Commissioner violated direction from the Labor Commissioner which was to move forward with all vacation/lost wage claims throughout California. She thinks they will reopen the claims in SF at some point, so those of you in SF may want to reach out to that office again.

  14. 14 Labor Board Wage Claim Hopeful 21 December 2008 at 10:15 am

    Those of us who went to the San Jose Labor Board have now received letters from the Board. They say:
    1. At this time they do not plan on handeling our WARN claims.
    2. That we have the option of joining in the Class Action suit filed by Kastner and should contact them if interested.
    3. That if there is enough people who opt out of the Class Acion, they will at a later date “revisit” and possibly pursue our interests in the WARN issue. But, they specifically state there has to e enough people opting out of the class action for them to do this.
    4. That we have to notify them before Jan. 10 if we want them to proceed with our vacation claims and we will need to sign something that we are opting out of the class action.

    So, I don’t know about others, but myself and my friends plan on pursuing our interests with the Labor Board. Personally I figure, if the class action ever does go forward, it will be a long long time from now, and we woudl probably get pennies on the dollar in the end. Assuming, of course, there is ANY money to get at that time. At least with the Labor Board, it will be a quick outcome. Not to mention the word is that Kastner isn’t well qualified to represent……

  15. 15 anonsf 22 December 2008 at 4:12 pm

    To above poster:
    How do you figure it will be a “quick” outcome? Best case scenario you get a judgement against Heller Ehrman LLP.
    The Labor Board isn’t going to collect that judgement for you. It’s not like they’re going to say “Ok, you win…here’s a check”.

    Just sayin..

  16. 16 Labor Board Wage Claim Hopeful 22 December 2008 at 11:47 pm


    Quick because Hayden indicated that come Jan they would be able to pay a first installment. (He wants HEWM to pay in installments–with no penalty fees) and the Labor Board Lady indicated we could settle quickly as well.

  17. 17 Another Former Associate 24 December 2008 at 3:47 am

    Heller’s intentions — whatever they may be at this point — are severely impacted by the 333 Bush landlord’s attachment order granted on Dec. 19. Heller will now have to think very seriously about going into bankruptcy or the landlord’s $46MM claim starts taking over.

    Suggest that you read the comments in the landlord lawsuit thread; they are important for understanding where we all are now.

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