22 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com As of 2022, intentional wage theft—including gratuities “in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate”—is now considered grand theft punishable as a misdemeanor or felony with jail time.23 Moreover, a Labor Commissioner order, decision, or award, once final and filed with the county recorder, creates a lien on the employer’s real property as if it were a final judgment creating a judgment lien.24 The conference. The conference determines if the claim can be resolved without a hearing. The parties bring evidence to support their positions but do not testify under oath. If the case is not resolved at the conference, then the Deputy Labor Commissioner determines whether to dismiss the claim or set the matter for a hearing. The Berman hearing. This hearing occurs in an informal setting but is a formal proceeding. The parties and witnesses testify under oath, and the proceedings are tape-recorded. The hearing officer is not bound by formal rules of evidence and has wide discretion to accept evidence and decide whether to assess penalties. Within 15 days of the hearing, the Labor Commissioner is supposed to serve on the parties an Order, Decision, or Award (ODA), setting forth the hearing officer’s decision and the amount awarded, if any. Can employees waive a Berman hearing in an arbitration agreement? In 2011, the California Supreme Court held that waiver of the Berman hearing would contravene public policy, and that California law prohibiting waiver of a Berman hearing is not preempted by the Federal Arbitration Act.25 The U.S. Supreme Court then reversed this decision and remanded to the California Supreme Court for further consideration in light of the U.S. Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion.26 On remand, the California Supreme Court reversed itself and agreed that the FAA would preempt any categorical ban on a Berman-hearing waiver. The California Supreme Court nonetheless held that California’s policy against unconscionability might still apply to void an arbitration provision that would deprive an employee of the right to a Berman hearing before arbitration is required.27 In 2019 the Supreme Court revisited the issue and voided an arbitration agreement as unconscionable on the ground that it was presented in oppressive circumstances and that its resolution procedures were unduly cumbersome in comparison to the pro-employee features of the Berman hearing. (See § 5.2.) Appeal to civil court. Within ten days after service of notice of an ODA, a party may seek judicial review by filing an appeal to the court.28 The court will then schedule a trial de novo—the parties will try the case again from the start, with each party presenting evidence. The Labor Code discourages employer appeals from DLSE awards by (1) requiring that the appealing employer post a bond, (2) making interest run on the amount of the award, (3) entitling the employee to costs and attorney fees on the appeal even if the award on appeal is less than the award from the Labor Commissioner (so long as the award is greater than zero), and (4) permitting the employee to raise new claims on appeal that the employee failed to raise before the DLSE. Undertaking required of employer on appeal. Employers who appeal a DLSE award must post with the reviewing court an undertaking in the amount of the award.29 Employers wishing to appeal must first post the undertaking.30 An employer’s failure to timely post the undertaking—or to request an indigency waiver—is jurisdictional, depriving the trial court of jurisdiction and leaving the employer without recourse.31 If the employer loses at trial or withdraws its appeal, then the employer must pay the amount of the award within ten days of the court’s judgment or withdrawal of the appeal; otherwise, the undertaking will be forfeited to the employee.32 Employers who have failed to post the required bond have thereby lost their appeals from adverse Labor Commissioner awards. One such employer, Fushan Li, owned four massage parlors. The Labor Commissioner ordered him to pay $198,576 in unpaid wages and liquidated damages. In seeking to appeal, he requested relief from the bond requirement of Labor Code section 1197.1(c)(3) because it did not take effect until January 1,
RkJQdWJsaXNoZXIy OTkwMTQ4