When the California Department of Industrial Relations, acting through the “Labor Commissioner,” enters an Order requiring an employer to pay wages and penalties, the employer has only a brief time to seek judicial review of that Order. A Notice of Appeal of the Order must be filed in Superior Court within 10 days of service of the Order. Labor Code § 98.2(a). As amended in 2010, Labor Code § 98.2(b) provides that “As a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award.” Until recently, the requirement to post a bond concurrent with filing the notice of appeal in Superior Court was not considered jurisdictional. Rather, the impression prevailing in the legal community was that the employer could safely file the notice of appeal within 10 days, while filing the bond at a later date. 2 Chin, et al, Employment Litigation, ¶11:1420 at 11-156 (Rev. #1 2011). In a recent decision, the California Court of Appeal (First District) has made clear that the bond must be filed within the 10-day deadline. Paligan v. Paniagua Construction Company, Inc. (2013) 222 Cal.App.4th 124. In that case, the employer filed a timely notice of appeal unaccompanied by a bond. Later, the trial court issued an order requiring the employer to post the bond within 10 days of the trial court’s order, which the employer did. After trial de novo, the trial court vacated the Labor Commissioner’s Order, finding that the plaintiff was not an employee of the defendant company. The employee appealed, and the Court of Appeal ruled that the bond requirement means what it says: as a condition to seeking review of the Commissioner’s Order, the employer must post the bond. The trial court, said the Court of Appeal, had no power to extend the deadline, and thus no jurisdiction to consider the appeal once the statutory deadline for filing the bond had passed. The Court of Appeal reversed the judgment and ordered that judgment be entered in favor of the Commissioner. Id. at 140.
The employer has sought review in the California Supreme Court (January 23, 2014). Nevertheless, unless the Supreme Court grants review and vacates the opinion, failing to file a bond with the notice of appeal should now be deemed too risky. Accordingly, attorneys who represent employers should prepare to file the necessary bond in Superior Court along with the notice of appeal. Because employers seem always to consult counsel regarding an appeal as the 10-day period is about to expire, preliminary arrangements with a bonding company may be a good idea.