©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 23 2017, after the citations to Li had already issued. The trial court denied this request and dismissed Li’s appeal for his failure to post the required bond. The Court of Appeal affirmed, holding that even though Li contested the citations before the amended statute took effect, the Commissioner issued its findings and order in April 2017, after the statute took effect. Application of the bond requirement in these circumstances was not deemed a retroactive application of the statute.33 Faring no better was Cardinal Care Management, a senior care home company. Facing a Labor Commissioner award of over $2.5 million, Cardinal appealed and petitioned for relief from the requirement that it post a bond in the amount of the award. Cardinal’s principal claimed he was “rebuilding his life after a bankruptcy and divorce” and declared he had no assets to support a bond. But the trial court found he had transferred large assets to certain financial entities managed by his wife in “an effort to avoid a judgment.” The Court of Appeal affirmed, holding that Cardinal’s ultimate failure to post a bond doomed its appeal, and that the bond requirement did not violate due process.34 Interest. All awards accrue interest (at the legal rate of 10%) from the date due to the date paid.35 Costs and attorney fees. The DLSE may represent a claimant who cannot afford counsel.36 In an appeal from an ODA, the appealing party who is “unsuccessful” is liable for the other party’s costs and reasonable attorney fees on appeal.37 Although appealing employees who received less from the court than the DLSE awarded were previously considered “unsuccessful” in this sense,38 the California Legislature has since deemed that an appealing employee “is successful if the court awards an amount greater than zero.”39 New employee claims can arise at trial. In one case, an employee prevailed before the Labor Commissioner on claims for unpaid overtime. When the employer appealed from the ODA for a trial de novo in court, the court permitted the employee to add new claims.40 1.5.2 Complaints for retaliation The DLSE also hears complaints that a person has suffered discrimination in violation of any law under the DLSE’s jurisdiction.41 There once was a six-month deadline to bring such a complaint but as of 2021 the deadline is now one year.42 1.5.3 Records inspection The Labor Code permits the DLSE to inspect the records of any “employer” to determine if the minimum wage has been paid, and to “enforce the payment of any sums found, upon examination, to be due and unpaid to the employees.”43 1.5.4 The DLSE Manual The DLSE published, in 2002, a comprehensive Enforcement Policies and Interpretations Manual—available online and subject to periodic updates.44 DLSE interpretations typically favor the view of the law that is most onerous for employers. The Manual itself deserves no judicial respect, as it amounts to an “underground regulation”—an administrative pronouncement that an agency issues without giving notice of a proposed regulation and an opportunity for the public to comment.45 The Manual is very useful, however, to the extent that it summarizes opinion letters (discussed immediately below) that the DLSE has issued in specific situations. 1.5.5 DLSE opinion letters The DLSE has issued opinion letters in response to particular situations presented by individual employees and employers. The precise amount of judicial deference owed to DLSE opinion letters is unclear. DLSE opinion letters are advice in specific cases only. Nonetheless, California courts state that the “DLSE’s interpretation of an
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