112
Opinion of the Court
ceived.4 Livadas requested the Commissioner to enforce the claim.5
By an apparently standard form letter dated February 7, 1990, the Division notified Livadas that it would take no action on her complaint:
"It is our understanding that the employees working for Safeway are covered by a collective bargaining agreement which contains an arbitration clause. The provisions of Labor Code Section 229 preclude this Division from adjudicating any dispute concerning the interpretation or application of any collective bargaining agreement containing an arbitration clause.
"Labor Code Section 203 requires that the wages continue at the 'same rate' until paid. In order to establish what the 'same rate' was, it is necessary to look to the
4 That section provides that when an employer "willfully fails" to comply with the strictures of § 201 and fails to pay "any wages" owed discharged employees, "the wages of such employees shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but such wages shall not continue for more than 30 days." Cal. Lab. Code Ann. § 203 (West 1989).
In her DLSE claim form, Livadas made plain that she did not dispute Safeway's calculation of the wages owed, but sought only the penalty for the employer's late tender. App. 18.
5 Under state law, the Commissioner of Labor is the Division Chief of the DLSE, see Cal. Lab. Code Ann. §§ 79, 82(b) (West 1989), and is authorized either directly to prosecute a wage or penalty claim on an employee's behalf in state court, § 98.3(a), or, in the alternative, to initiate informal hearings under DLSE auspices, see § 98(a), in which full relief may be awarded, § 98.1. The Commissioner's policy with respect to claims by employees covered by collective-bargaining agreements appears not to distinguish between these two modes of proceeding, and, accordingly, we will refer, as the parties largely do, to her policy as a categorical refusal to "enforce" such claims. Although Labor Code § 218 states that "[n]othing in this article shall limit the right of any wage claimant to sue . . . for any wages or penalty due him," another provision, § 218.5, authorizes attorney's fee awards to prevailing parties in wage and penalty disputes, making individual litigation a somewhat risky prospect, and DLSE enforcement remains in any event the more realistic avenue for modest claims.
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