There will be times when the decision of the hearing officer will not be what you had wanted. You may choose to appear the decision. There are strict time limits on when this can be done and will be stipulated on the ODA (Order, Decision or Award) which will be served on both parties within fifteen (15) days of the hearing. Any award granted will also be detailed in the ODA. According to Labor Code §98.2, to file an appeal, you must serve a copy of the Notice of Appeal (can be obtained from the DLSDE Office) to the Labor Commissioner’s office and to the plaintiff within the time frame outlined in the ODA.
In addition to filing an appeal, the defendant is also responsible for posting a bond in the amount stipulated in the ODA. (The court wants to ensure that you will be able to pay award if the appeal is denied.) The court clerk will then set the matter for de novo hearing, which means that a new judge will hear the case with each party having the opportunity to present evidence and witnesses. (This judge will not review the ODA but will instead come to his own conclusion.) If the defendant files the appeal, the DLSE may represent a plaintiff who is financially unable to afford counsel in the appeal proceedings. (There is a financial-criteria set forth by the DLSE which the plaintiff will need to meet.)
If the appeal is granted, it will be referred by the court clerk to a superior court. The court will send a Notice of Hearing that details the date, time and location of the hearing to both parties. At this de novo hearing you will be granted the same rights as you did during the hearing and a judge has the same powers as a hearing officer. The big difference here is that hearsay evidence will no longer be admitted, as it was during the Berman Hearing. It might be important to have an employment attorney on hand to help to determine how to use testimony based off hearsay in addition to other prohibited evidence.
The ODA issued by the judge will be considered to be final. Should the award granted to the employee be less, remember that you will still need to pay an employee’s attorney fees and costs because the employee will still be considered to have won the lawsuit. The only win to an appeal on your end would be if the award is reduced to nothing and this is the only case where the employee would then be held responsible to pay your attorney fees and costs.
The final ODA decision will be where the award granted to the plaintiff will be listed. The judgment can be enforced by any of the procedures available to enforce court judgments and if you do not pay the award that was granted to your employee, there will be additional fines (and possibly prison time) charged against you. As an employment law attorney, I would recommend that you pay it as quickly as possible in order to avoid any issues moving forward.
If this employee never resigned their employment with you before or during this process, then they are still considered to be employed by you. You are not permitted to fire them, or even discriminate against them, based on this wage claim or else they will have grounds to sue you in civil court. If you wish to terminate them, you must do it based on legitimate reasons that are NOT related to the wage claim. Remain courteous and polite while in the presence of this employee and never discourage other employees from seeking similar claims.
It is important to have an attorney on your side when it comes to these wage claims. Allow Rupal Law to help you be prepared for every step in winning the claims filed against you by an employee. Allow us to teach you what your legal responsibilities and obligations are as an employer. A consult package with Rupal Law gives you the peace of mind of knowing your legal support and guidance is just a phone call away. Contact us today to learn more and take the first step towards compliance knowledge and avoidance of unexpected legal claims. www.rupallaw.com
