©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 23 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.31 Employers wishing to appeal must first post the undertaking.32 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.33 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.34 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, 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 an improper retroactive application of the statute.35 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.36 Interest. All awards accrue interest (at the legal rate of 10%) from the date due to the date paid.37 Costs and attorney fees. The DLSE may represent a claimant who cannot afford counsel.38 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.39 Although appealing employees who received less from the court than the DLSE awarded were previously considered “unsuccessful” in this sense,40 the California Legislature has since deemed that an appealing employee “is successful if the court awards an amount greater than zero.”41 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.42 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.43 There once was a six-month deadline to bring such a complaint, but as of 2021 the deadline is now one year.44 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.”45
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