Larry Burkes filed a complaint with the Labor Commissioner’s office against his employer Damon Robertson (d.b.a. All Ways Delivery) for unpaid overtime wages, waiting time penalties, liquidated damages and interest, which resulted in an award of $81,565.34 being granted to Burkes on June 21, 2016. Robertson filed a pro se notice of appeal with the Solano County Superior Court on July 6, 2016, but failed to post a statutorily required undertaking (an appeal bond or cash deposit in the amount of the award) within the time provided (according to Labor Code §98.2). Even though he requested a waiver of the undertaking requirement, the trial court still felt that Robertson’s failure to request the waiver prior to the deadline deprived them of jurisdiction to consider the request.
According to Labor Code §98 and 98.1, subdivision (a), the jurisdiction of the commissioner to investigate, hear and determine wage disputes is spelled out. The Commissioner must file the decision within 15 days of the administrative hearing and serve a copy of such decision on the parties. A party may seek review of the Commissioner’s decision by filing an appeal in the superior court within 10 days of service (15 days if service is done via mail).
If the appeal is not filed on time, the decision or award becomes final. The reasons behind these strict statutory time limits are the court’s way of recognizing the importance of an average worker’s “economic dependence” on wages received. The requirement of the employer goes further to say that the award must still be posted prior to filing the appeal. (It may be represented by an appeal bond issued by a licensed surety or a cash deposit with the court in the amount of the order, decision or award.) The reasons behind this further requirement are to discourage employers from filing “frivolous” or flippant appeals as well as from allowing them the ability to hide assets in an effort to avoid the payment of the award.
The legislative history explains why both of these requirements became “mandatory and jurisdictional” based on an amendment connected to §98.2(b) in 2010 which also took away the court’s authority to extend the deadline for posting the undertaking beyond the date for filing the notice of appeal.
There is the option to request a waiver for the requirement of bond or undertaking on the grounds of both indigency and inability to obtain the necessary bond, but with Robertson, the issue was when the waiver was requested.
On August 1, 2016, a hearing on the order to show cause was held. Robertson and his office manager appeared and advised the court that Robertson had not posted an undertaking because he was financially unable to do so, allowing him to make a written request for a waiver of the undertaking requirement. The hearing was continued to August 29, 2016, and while the court considered granting the waiver, it questioned whether or not it had jurisdiction to do so because at this point the deadline had already passed. Robertson argued this detail to be “unreasonable.”
Robertson also questioned the standards reviewed when determining if an employer is indigent (financially unable to pay an award). Code of Civil Procedure §995.240 allows for the exemption of an indigent from an undertaking requirement but a party seeking relief under this statute must make a motion to the trial court and must also prove he was indigent by establishing both financial need as well as making an effort to obtain a bond. But this alone is not grounds to grant the waiver request.
The nature of wage claims requires the trial court also consider §98.2(b) which has the objective to collect wages that are due and unpaid as well as the discouragement of frivolous appeals for the purposes of delay of payment. We must also consider the financial harm this delay may cause to the employee. The “inconvenience and hardship” claimed by Robertson are not sufficient reasons to grant his waiver.
The court dismissed Robertson’s appeal on October 14, 2016, finding that the §98.2(b) undertaking requirement is mandatory and jurisdictional. The court held that it did not have jurisdiction to consider Robertson’s request for a waiver because he had not made the request prior to the filing deadline for appeal of the Award.
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