©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 21 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.31 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.32 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.33 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.34 Employers wishing to appeal must first post the undertaking.35 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.36 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.37 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.38 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.39 Interest. All awards accrue interest (at the legal rate of 10%) from the date due to the date paid.40 Costs and attorney fees. The DLSE may represent a claimant who cannot afford counsel.41 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.42 Although appealing employees who received less from the court than the DLSE awarded were
RkJQdWJsaXNoZXIy OTkwMTQ4