37 2016 00015560 Cl en Ctl Roa 1-05-09 16 CA Labor Board Judgment Digital Ear, Inc
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Transcript of 37 2016 00015560 Cl en Ctl Roa 1-05-09 16 CA Labor Board Judgment Digital Ear, Inc
REQUEST THAT CLERK ENTER JUDGMENT AND JUDGMENT ON FINAL ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER
STATE CASE NUMBER
10 - 86954 MM
REQUEST THAT CLERK ENTER JUDGMENT The Order, Decision or Award of the Labor Commissioner has become final and t clerk is requested to enter judgment immediately in conformity with the accompanying certified copy.
LABOR COMMISSIONER, STATE OF CALIFORNIA
BY
DATED: May 4, 2016 JUDGMENT
A certified copy of a final Order, Decision or Award of the Labor Commissioner has been filed with this court. Judgment therefore is entered
as follows: Plaintiff recover from Defendant. 83.00 for wages and expenses pursuant to Labor Code Section 98.1;
72.33 for liquidated damages pursuant to Labor Code Section 1194.2;
16.38 interest pursuant to Labor Code Section(s) 98.1(c), 1194.2 and/or 2802(b);
2,160.00 for additional wages accrued pursuant to Labor Code Section 203 as a penalty;
0.00 for penalties pursuant to Labor Code Section 203.1;
0.00 other (specify):
2,331.71 Total Amount of Plaintiff's Award
0.68 for post hearing interest pursuant to Labor Code Section 98.1(c)
225.00 for filing fee, pursuant to Labor Code Section 101, et. seq.
2,557.39 Total Amount of Judgment
I certify this to be a true copy of the judgment entered on MAY 1 0 2016 ; in Judgment book at page
or microfilm, pursuant to CCP 668.5. Clerk, by (--e• p I- eepduaty Clerk
inda Aguilar DEPUTY
, For Court use only)
C 1 9
1 -9 PM 2: '37
Court numbc:
7-2016-00015560-CL - EN -CTL
'LAINTIFF: Derald Leggitt
LABOR COMMISSIONER, STATE OF ..i1LIFORNIA Department of Industrial Relations Division of Labor Standards Enforcement 7575 Metropolitan Dr., Ste. 210 San Diego CA 92108 Tel: (619) 220-5451 Fax: (619) 767-2020
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF San Diego
Central Division JUDICIAL DISTRICT
DEFENDANT: DIGITAL EAR, INC., a California Corporation
DLSE 545(2001) (Rev. 1/12)
REQUEST THAT CLERK ENTER JUDGMENT L.C. 98
Superior Court of California TELEPHONE NUMBER
County of San Diego
330 West Broadway, 2nd Floor San Diego, CA 92101
t'or court use only
F 1 1. E D tro.-fik4gtitierforeourt
MAY 1 0 2016
By: L. PINEDA, Depvty
PLAINTIFF: Derald Leggitt
DEFENDANT: DIGITAL EAR, INC., a California Corporation Shazad Berenjian, agent of Service 645 Front St. #1910 San Diego CA 92101
Case Number
10 - 86954 MM CLERK'S NOTICE OF ENTRY OF JUDGMENT
To the parties and their attorneys of record: You are hereby notified that the attached copy of the MAY 1 0 2016
CLERK'S CERTIFICATE OF SERVICE
I hereby certify that Lam a clerk of the above-named court and not a party to this cause, that I served a copy of this NOTICE and a copy of the judgment, on the below date, by placing a copy thereof in separate envelope(s) addressed to:
Derald Leggitt 3213 Midway Drive #808 San Diego, CA 92110
Digital Ear, Inc. Shazad Berenjian, agent of Service 645 Front St. #1910 San Diego CA 92101
LABOR COMMISSIONER, STATE OF CALIFORNIA Department of Industrial Relations Division of Labor Standards Enforcement 7575 Metropolitan Dr., Ste. 210 San Diego CA 92108
and by then sending said envelopt) and depopifipg same with postage fully prepaid thereon, in the
United States mail at (7n/ln 121crin California on MAY 1 fl 21116 Clerk of the Court
fict
judgment in the above entitled cause was entered on
by 1. Pineda Provided by the Labor Commissioner for the Court's use DLSE 545C (Rev. 3/11)
Lisa M. Briggs
STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
CERTIFICATION OF SERVICE BY MAIL (C.C.P. 1013A) OR CERTIFIED MAIL
T isa M Rriggs , do hereby certify that I am a resident of or employed in the County of San Diegn , over 18 years of age, not a party to the within action, and that J am employed at and my business address is:
LABOR COMMISSIONER, STATE OF CALIFORNIA 7575 Metropolitan Dr., Ste. 210
San Diego CA 92108 Tel: (619) 220-5451 Fax: (619) 767-2020
I am readily familiar with the business practice of my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business.
NOTICE TO:
On April 19, 2016 at my place of business, a copy of the following document(s):
Order, Decision or Award
was(were) placed for deposit in the United States Postal Service in a sealed envelope, by first class mail , with postage fully prepaid, addressed to:
Derald Leggitt 3213 Midway Drive # 808 San Diego, CA 92110
and that envelope was placed for collection and mailing on that date following ordinary business practices.
I certify under penalty of perjury that the foregoing is true and correct.
Executed on: April 19 7016 at
STATE CASE NUMBER: 10-86954 MM
DLSE 544/PLT. (3/06)
CERTIFICATION OF MAILING L.C. 98
Lisa M. Briggs
STATE OF CALIFORNIA DEPARTMENT OF INDUSTRIAL RELATIONS
DIVISION OF LABOR STANDARDS ENFORCEMENT
CERTIFICATION OF SERVICE BY MAIL (C.C.P. 1013A) OR CERTIFIED MAIL
T Ica M Ftriggc , do hereby certify that I am a resident of or employed in the County
of San Diego , over 18 years of age, not a party to the within action, and that I am
employed at and my business address is:
LABOR COMMISSIONER, STATE OF CALIFORNIA 7575 Metropolitan Dr., Ste. 210
San Diego CA 92108 Tel: (619) 220-5451 Fax: (619) 767-2020
I am readily familiar with the business practice of my place of business for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business.
NOTICE TO
On April 19 2016 at my place of business, a copy of the following document(s):
Order Derision or Award
was(were) placed for deposit in the United States Postal Service in a sealed envelope, by firat Haas mail , with postage fully prepaid, addressed to:
Digital Ear, Inc. Shazad Berenjian, agent of Service 645 Front St #1910 San Diego CA 92101
and that envelope was placed for collection and mailing on that date following ordinary business practices.
certify under penalty of perjury that the foregoing is true and correct.
Executed on: April 19, 7016 at
STATE CASE NUMBER: 10-86954 MM
DLSE 544/DEF. #1 (3/06) CERTIFICATION OF MAILING L.C. 98
LABOR COMMISSIONER, STATE' ' 41,1FORNIA Department of Industrial Relations Division of Labor Standards Enforcement 7575 Metropolitan Dr., Ste. 210 San Diego CA 92108 Tel: (619) 220-5451 Fax: (619) 767-2020
Derald Leggitt
Defendant: DIGITAL EAR, INC., a California Corporation
NOTICE OF PAYMENT DUE State Case Number 1 0 - 86954 MM
You have been served a copy of the Labor Commissioner's Order, Decision or Award.
If the full amount of the sums set forth in the Order, Decision or Award is received by this office within ten (10 ) days of the date the Order, Decision or Award was served upon you, no judgment will be entered in this matter.
Payment must be made by certified check, cashier's check or money order (no other tender will be accepted) made payable to the Plaintiff named in the Order, Decision or Award, and addressed to the Office of the Labor Commissioner at the address shown above.
DATED: April 18, 2016 la ffeelet
Mark Meeker 619-767-2008
Deputy Labor Commissioner
DLSE 550 (Rev. I/11) NOTICE OF PAYMENT DUE L.C. 98
LABOR COMMISSIONER, STK" C "ALIFORNIA Department of Industrial Relation Division of Labor Standards Enforcement 7575 Metropolitan Dr., Ste. 210 San Diego CA 92108 Tel: (619) 220-5451 Fax: (619) 767-2020
For ir ? Only:
Plaintiff: Derald Leggitt Court Number
Defendant: DIGITAL EAR, INC., a California Corporation
State Case Number
10 - 86954 MM ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER
I. The above-entitled matter came on for hearing before the Labor Commissioner of the State of California as follows:
DATE: December 16, 2015 ECONTINUED TO: CITY: 7575 Metropolitan Dr., Ste. 210, San Diego, CA 92108
2. IT IS ORDERED THAT: Plaintiff recover from Defendant. 83.00 for wages (with lawful deductions) 72 .33 for liquidated damages pursuant to Labor Code Section 1194.2 0.00 Reimbursable business expenses
16.38 for interest pursuant to Labor Code Section(s) 98.1(c), 1194.2 and/or 2802(b),
2 160.00 for additional wages accrued pursuant to Labor Code Section 203 as a penalty and that sante shall not be , subject to payroll or other deductions.
0.00 for penalties pursuant to Labor Code Section 203.1 which shall not be subject to payroll or other deductions. 0.00 other (specify):
2,331.71 TOTAL AMOUNT OF AWARD
3. The herein Order, Decision or Award is based upon the Findings of Fact, Legal Analysis and Conclusions attached hereto and incorporated herein by reference. 4. The parties herein are notified and advised that this Order, Decision or Award of the Labor Commissioner shall become final and enforceable as a judgment in a court of law unless either or both parties exercise their right to appeal to the appropriate court* within ten (10) days of service of this document. Service of this document can be accomplished either by first class mail or by personal delivery and is effective upon mailing or at the time of personal delivery. If service on the parties is made by mail, the ten (10) day appeal period shall be extended by five (5) days. For parties served outside of California, the period of extension is longer (See Code of Civil Procedure Section 1013). In case of appeal, the necessary filing fee must be paid by the appellant and appellant must, immediately upon filing an appeal with the appropriate court, serve a copy of the appeal request upon the Labor Commissioner. If an appeal is filed by a corporation, a non-lawyer agent of the corporation may file the Notice of Appeal with the appropriate court, but the corporation must be represented in any subsequent trial by an attorney, licensed to practice in the State of California. Labor Code Section 98.2(c) provides that if the party seeking review by filing an appeal to the court is unsuccessful in such appeal, the court shall determine the costs and reasonable attorney's fees incurred by the other party to the appeal and assess such amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero. PLEASE TAKE NOTICE: Labor Code Section 98.2(b) requires that as a condition to filing an appeal of an Order, Decision or Award of the Labor Commissioner, the employer shall first post a bond or undertaking with the court in the amount of the ODA; and the employer shall provide written notice to the other parties and the Labor Commissioner of the posting of the undertaking. Labor Code Section 98.2(b) also requires the undertaking contain other specific conditions for distribution under the bond. While this claim is before the Labor Commissioner, you are required to notify the Labor Commissioner in writing of any changes in your business or personal address within 10 days after any change occurs.
Superior Court of California ,County of San Diego 130 West Broadway, 2nd Floor San DiegoLCA 92101
DATED: April 18, 2016 DLSE 535 (Rev. 1/12)
LABOR IONER STATE OF CALIFORNIA COMM
AP: /
.41111(..ca 41,
a Aguilar fr HEARING OFFICER
ORDER, DECISION OR AWARD OF THE LABOR COMMISSIONER
L.C. 98
BY
DEPARTMENT OF INDUSTRIAL RELATIONS DIVISION OF LABOR STANDARDS ENFORCEMENT
In the Matter of
)
State Case Number
)
10-86954-MM DERALD LEGGITT
) ORDER, DECISION OR AWARD
(Plaintiff)
)
OF THE LABOR COMMISSIONER
)
V. )
DIGITAL EAR, INC., )
A CALIFORNIA CORPORATION
)
(Defendant)
)
)
APPEARANCES FOR PLAINTIFF: Derald Leggitt (Plaintiff) APPEARANCES FOR DEFENDANT: No appearances OBSERVER: Kimberly Leggitt
BACKGROUND
The Plaintiff filed an initial report or claim with the Labor Commissioner's office on
May 6, 2015. The complaint raises the following allegations:
1. That the Plaintiff is entitled to recover from the Defendant $83.00 for the
balance due for regular and overtime wages earned in the period January 19, 2015 to
February 2, 2015, being 51 regular hours at $9.00 per hour and 2.37 overtime hours at
$13.50 per hour, for a total earnings of $491.00, less $408.00 previously paid.
2. That the Plaintiff is entitled to recover from the Defendant penalties pursuant
to the provisions of Labor Code Section 203 at the rate of $72.00 per day for an
indeterminate number of days not to exceed thirty (30) days.
3. That the Plaintiff is entitled to recover from the Defendant $72.33 for liquidated
damages pursuant to the provisions of Labor Code Section 1194.2.
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Page 1
4. That the Plaintiff is entitled to recover from the Defendant interest pursuant to
the provisions of Labor Code Section 98.1.
On December 16, 2016, a hearing was conducted at the Labor Commissioner's office
in San Diego, California. The hearing was presided over by the undersigned hearing
officer designated by the Labor Commissioner to hear the matter.
The Plaintiff appeared pro persona.
The Defendant's agent was served at the address of record listed with the California
Secretary of State but failed to appear at the hearing and did not file an answer to the
complaint.
Kimberly Ileggitt, the Plaintiff's wife, observed the hearing.
Due consideration having been given to the testimony, documentary evidence, and
arguments presented, the Labor Commissioner hereby adopts the following Order,
Decision or Award.
FINDINGS OF FACT
The Defendant operates a business involved in the sales of home theater and audio
systems. The Plaintiff was employed by the Defendant to perform personal services
as a Salesman for the period January 18, 2015 to March 27, 2015. The Plaintiff testified
he worked 51 regular hours at $9.00 per hour and 2.37 overtime hours at $13.50 per
hour, earning total wages of $491.00. The Plaintiff testified he would e-mail his
worked hours to his manager. The Plaintiff testified that the Defendant did not pay
him correctly and that he received $408.00 from the Defendant for the payment a his
wages earned during the period of January 18, 2015 to March 27, 2015.
The Plaintiff testified he quit without notice on March 27, 2015 and informed his
manager that he was quitting effective immediately. The Plaintiff testified he worked
an average of 8 hours a day, earning a daily rate of $72.00.
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Page 2
LEGAL ANALYSIS
The wages, hours and working conditions of the Defendant's employees are
regulated by the provisions of the California Labor Code and Industrial Welfare
Commission Orders.
In these administrative hearings, the Plaintiff has the initial burden of proof. 1
"Burden of proof" is defined in California Evidence Code Section 115 as follows:
"Burden of proof" means the obligation of a party to establish by evidence a requisite
degree of belief concerning a fact in the mind of the trier of fact or the court. In these
administrative hearings the trier of fact is the Hearing Officer.
California Evidence Code Section 115 also provides "Except as otherwise provided
by law, the burden of proof requires proof by a preponderance of the evidence."
"Evidence" is defined in California Evidence Code Section 140 as follows:
"Evidence" means testimony, writings, material objects, or other things presented to
the senses that are offered to prove the existence or nonexistence of a fact.
"Preponderance of the evidence" means that evidence that, when weighed with that
opposed to it, has more convincing force and the greater probability of truth. 2
In that the Defendant failed to appear at the hearing and did not file an answer to
the complaint, there is nothing before the Hearing Officer to deny or mitigate the
Plaintiff's complaint.
That being said, Labor Code Section 98(f) provides, in part, "If the defendant fails to
appear or answer within the time allowed under this chapter, no default shall be
1 California Evidence Code Section 500 et seq. 2 California Labor Code Section 3202.5 provides, in relevant part, "Preponderance of the evidence" means that evidence that, when weighed with that opposed to it, has more convincing force and the greater probability of truth. When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence."
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Page 3
taken against him or her, but the Labor Commissioner shall hear the evidence offered
and shall issue an order, decision, or award in accordance with the evidence."
WAGES
The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant $83.00 for the balance due for regular and overtime wages earned in
the period January 19, 2015 to February 2, 2015, being 51 regular hours at $9.00 per
hour and 2.37 overtime hours at $13.50 per hour, for a total earnings of $491.00, less
$408.00 previously paid.
Labor Code Section 200 defines wages as "...all amounts for labor performed by
employees of every description, whether the amount is fixed or ascertained by the
standard of time, task, piece, commission basis, or other method of calculation."
Labor Code Section 510 provides, in relevant part, "Eight hours of labor constitutes a
day's work. Any work in excess of eight hours in one workday and any work in excess
of 40 hours in any one workweek and the first eight hours worked on the seventh day
of work in any one workweek shall be compensated at the rate of no less than one and
one-half times the regular rate of pay for an employee. Any work in excess of 12
hours in one day shall be compensated at the rate of no less than twice the regular rate
of pay for an employee. In addition, any work in excess of eight hours on any seventh
day of a workweek shall be compensated at the rate of no less than twice the regular
rate of pay of an employee."
Concerning this portion of the Plaintiff's complaint, the evidence supports a finding
that the Plaintiff has met the burden of proof as required by law.
Therefore, the Plaintiff is entitled to recover from the Defendant $$83.00 for the
balance due for regular and overtime wages earned in the period January 19, 2015 to
February 2, 2015, being 51 regular hours at $9.00 per hour and 2.37 overtime hours at
$13.50 per hour, for a total earnings of $491.00, less $408.00 previously paid.
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Page 4
UNPAID FINAL WAGES PENALTIES
The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant penalties pursuant to the provisions of Labor Code Section 203 at the
rate of $72.00 per day for an indeterminate number of days not to exceed thirty (30)
days.
California Labor Code Section 203 provides, in relevant part, "If an employer
willfully fails to pay, without abatement or reduction, in accordance with Sections 201,
201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the
wages of the employee shall continue as a penalty from the due date thereof at the
same rate until paid or until an action therefor is commenced; but the wages shall not
continue for more than 30 days. An employee who secretes or absents himself or
herself to avoid payment to him or her, or who refuses to receive the payment when
fully tendered to him or her, including any penalty then accrued under this section, is
not entitled to any benefit under this section for the time during which he or she so
avoids payment."
The California Code of Regulations Title 8, Section 13520 defines "willful" as
follows: "A willful failure to pay wages within the meaning of Labor Code Section 203
occurs when an employer intentionally fails to pay wages to an employee when those
wages are due. However, a good faith dispute that any wages are due will preclude
imposition of waiting time penalties under Section 203.(a) Good Faith Dispute. A
"good faith dispute" that any wages are due occurs when an employer presents a
defense, based in law or fact which, if successful, would preclude any recover on the
part of the employee. The fact that a defense is ultimately unsuccessful will not
preclude a finding that a good faith dispute did exist. Defenses presented which,
under all the circumstances, are unsupported by any evidence, are unreasonable, or
are presented in bad faith, will preclude a finding of a "good faith dispute."
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California Labor Code Section 202 provides, in relevant part, "If an employee not
having a written contract for a definite period quits his or her employment, his or her
wages shall become due and payable not later than 72 hours thereafter, unless the
employee has given 72 hours previous notice of his or her intention to quit, in which
case the employee is entitled to his or her wages at the time of quitting.
Notwithstanding any other provision of law, an employee who quits without
providing a 72-hour notice shall be entitled to receive payment by mail if he or she so
requests and designates a mailing address. The date of the mailing shall constitute the
date of payment for purposes of the requirement to provide payment within 72 hours
of the notice of quitting."
California Labor Code section 208 provides, "Every employee who is discharged
shall be paid at the place of discharge, and every employee who quits shall be paid at
the office or agency of the employer in the county where the employee has been
performing labor. All payments shall be made in the manner provided by law."
The evidence supports a finding that the Plaintiff quit and did not provide seventy-
two (72) hours advanced notice thereof.
The evidence supports a finding that the Plaintiff's final wages remain unpaid or
were paid more than thirty (30) days after they were due.
Concerning this portion of the Plaintiff's complaint, the evidence supports a finding
that the Plaintiff has met the burden of proof as required by law.
Therefore, the Plaintiff is entitled to recover from the Defendant $2,160.00 for
penalties pursuant to the provisions of Labor Code Section 203 being $72.00 per day
for thirty (30) days.
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Page 6
LABOR CODE SECTION 1194.2 LIQUIDATED DAMAGES
The Plaintiff's complaint alleges, in part, that the Plaintiff is entitled to recover from
the Defendant $72.33 for liquidated damages pursuant to the provisions of Labor
Code Section 1194.2.
Labor Code Section 1194.2 provides, "(a) In any action under Section 98, 1193.6, or
1194 to recover wages because of the payment of a wage less than the minimum wage
fixed by an order of the commission or by statute, an employee shall be entitled to
recover liquidated damages in an amount equal to the wages unlawfully unpaid arid
interest thereon. Nothing in this subdivision shall be construed to authorize the
recovery of liquidated damages for failure to pay overtime compensation.
(b) Notwithstanding subdivision (a), if the employer demonstrates to the satisfaction
of the court or the Labor Commissioner that the act or omission giving rise to the
action was in good faith and that the employer had reasonable grounds for believing
that the act or omission was not a violation of any provision of the Labor Code
relating to minimum wage, or an order of the commission, the court or the Labor
Commissioner may, as a matter of discretion, refuse to award liquidated damages or
award any amount of liquidated damages not exceeding the amount specified in
subdivision (a). (c) This section applies only to civil actions commenced on or after
January 1, 1992."
Industrial Welfare Commission Order 4-2001, Section 4, Minimum Wage, provides
in relevant part "(B) Every employer shall pay to each employee, on the established
payday for the period involved, not less than the applicable minimum wage for all
hours worked in the payroll period, whether the remuneration is measured by time,
piece, commission, or otherwise."
The evidence supports a finding that for the period of the complaint, the Plaintiff
was not paid the minimum wage, when due, for all hours worked.
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Linda Aguilar Hearing Officer
Therefore, the Plaintiff is entitled to recover from the Defendant $72.33 in liquidated
damages (53.37 hours worked x $9.00 per hour less $408.00 paid) pursuant to the
provisions of Labor Code Section 1194.2.
LABOR CODE SECTIONS 98.1 INTEREST ON AWARDS
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the Defendant interest pursuant to the provisions of Labor Code Sections 98.1.
Labor Code Section 98.1(c) provides, "All awards granted pursuant to a hearing
under this chapter shall accrue interest on all due and unpaid wages at the same rate
as prescribed by subdivision (b) of Section 3289 of the Civil Code. The interest shall
accrue until the wages are paid from the date that the wages were due and payable as
provided in Part 1 (commencing with Section 200) of Division 2."
In that a portion of the Plaintiff's award is for due and unpaid wages and liquidated
damages, the Plaintiff is entitled to interest on the award.
CONCLUSION
For all of the reasons set forth above, it is hereby ordered that the Plaintiff is entitled
to recover from the Defendant a total of $2,331.71 calculated as follows:
1. $83.00 for wages
2. $2,160.00 for penalties pursuant to the provisions of Labor Code Section 203
3. $72.33 for liquidated damages pursuant to the provisions of Labor Code Section
1194.2.
4. $16.38 for interest pursuant to the provisions of Labor Code Section 98.1
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Dated: April 18, 2016 24
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By Aguilar
'or Deputy Labor Commissioner
STATE OF CALIFORNIA G. 13rm‘ n. jr. ,
DEPART \ 1EN I OF INDLSTRIAL RELATIONS Di\ ision of Labor Standards Enforcement
ou
7573 Nletrorolitan NI\ 211.)
•rt• 1
San Diego. C.1 1)210S (61 0 ) 220-5431
"I hereby certify that the herein contained document is a full, true and correct copy of the final Order, Decision or Award of the Labor Commissioner served on the parties herein."
State of California Department of Industrial Relations