How To Appeal a Labor Commissioner Decision

As an employer, large or small, you likely run into wage disputes with employees from time to time.  An employee may file a claim, for various alleged reasons, with the Division of Labor Standards Enforcement (DLSE, also known as the Labor Commissioner).  Such claims are not uncommon in the workplace.  Whatever the outcome in this initial claim, known as the Order, Decision, or Award (ODA), both parties are allowed to appeal.

The Right to Appeal an Order, Decision, or Award (ODA)

Some of the reasons for the employee’s initial claim may include:

• Not receiving agreed upon wages
• Being paid less than the minimum rate per hour
• Tips being taken by management or the owner
• Bounced paychecks

Any of these complaints, and others, may result in a decision favorable to the employee. In the event that the ODA rules against you, as the employer, you still have the right to appeal.  It can be difficult, however; it requires expertise in both labor law and navigating the steps.  Choosing a qualified labor lawyer like those at TencerSherman will greatly benefit you in evaluating and presenting your case.

Appealing and ODA Decision – the Steps

You will have to file your appeal within 15 days of the date on the certification of service by mail.  This is important; miss the cut-off date and the ODA decision is considered final.

You will also have to post a bond guaranteeing the amount of the award within the deadline of the appeal.  This will cost you money.

Upon appeal, your case will move to the local county Superior Court and is no longer under the purview of the Labor Commissioner.

The Court Clerk sets the case for a de novo hearing.  This means that the case, unlike most Superior Court appeals, is treated as new—nothing presented in the previous hearing will be considered. At this stage, the court may also decide on claims not made in the initial hearing.  Therefore, in a decision favorable to the employee, you may have to pay more than the original award.

As the employer, you must be represented by legal counsel in Superior Court.  Having an experienced labor lawyer is a good idea, as they will have knowledge of both the law and the ins and outs of the court proceedings.  Going it alone is not an option for the employer.

It’s very important to note that the losing side will likely be responsible for any court costs and the employee’s attorney fees.  These can be significant.

Challenging ODA Decisions through Appeal

You have every right to appeal a Labor Commissioner decision.  As the employer, however, it is wise to be very aware of how the proceedings work, and what the likelihood is for a positive outcome.  Again, it is necessary to have legal counsel at the hearing.  Make sure to contact a firm like TencerSherman that has extensive experience and knowledge of labor law.