Appeal of Labor Commissioner Award Requires Specific Surety Bond

Jesus Gomez was employed by Adanna Car Wash Corporation located on Crenshaw Blvd, in Gardena California. He filed a wage claim against his employer with the California Labor Commissioner.

After a hearing, the Labor Commissioner awarded Gomez $23,915.59 for overtime earnings, meal period premium pay, rest period premium pay, liquidated damages, interest, and waiting time penalties.

Under Labor Code section 98.2, subdivision (a), a party to a Labor Commissioner proceeding may seek review “of an order, decision, or award by filing an appeal to the superior court, where the appeal shall be heard de novo.” Under subdivision (b) of the statute, if the employer is the appealing party, the employer must post a bond.

Adanna filed with the Los Angeles County superior court a document entitled “Department of Industrial Relations Notice of Appeal De Novo” and a “Notice of Posting Bond Re Department of Industrial Relations Notice of Appeal De Novo.” However Adanna had attached a copy of its Labor Code section 2055 car wash bond rather than a specific bond required section 98.2.

Gomez moved to dismiss the appeal because Adanna “failed to deposit/post an undertaking, which is a jurisdictional prerequisite for [its] appeal under Labor Code section 98.2(b).” In opposition, Adanna argued that the section 2055 bond satisfied the section 98.2 undertaking because the former was intended to benefit car wash employees and Gomez was a car wash employee.

The superior court granted Gomez’s motion and dismissed the appeal. The Court of Appeal affirmed in the published case of Adanna Car Wash Corp. v. Gomez – B313649 (January 2023).

This appeal addresses the relationship between two statutory surety bonds required under different sections of the Labor Code. There are two types of bonds in play here – a section 98.2 appeal bond and a section 2055 car wash bond.

“The appeal bond is forfeited to the employee where the employer’s appeal fails or is withdrawn, and the employer does not timely pay the award. (§ 98.2, subd. (b).)”

“In contrast, a $150,000 car wash bond is a prerequisite to operating a car wash in California. (§ 2055.) On its face, section 2055 makes clear a car wash bond has nothing to do with litigation or appellate proceedings. It is condition that must be satisfied before the car wash employer may obtain a license or permit:”

The Court went on to say “Adanna’s sleight-of-hand attempt to substitute a car wash bond for an appeal bond runs afoul of a rule that applies to bonds in general. Code of Civil Procedure section 995.140, subdivision (b) expressly distinguishes between a licensing bond and one furnished in connection with litigation.”

The Legislative history supports the analysis that the posting of a section 98.2 bond is essential to protect employees in Labor Commissioner appeals filed by employers.

Prior to 2000, section 98.2 did not require employers seeking appellate review of Labor Commissioner awards to post a bond. In that year, the Legislature amended section 98.2 to include the appeal bond requirement to ensure that workers are paid if they prevail at the de novo appeal in cases where employers “disappear or declare bankruptcy” during the appeal.

According to the legislative analysis when the appeal bond was being considered, there was evidence that “unscrupulous employers, particularly those in the underground economy, were filing ‘frivolous’ appeals of [Labor Commissioner] decisions with the superior court in an effort to drag out litigation and hide assets so that workers would not be able to collect on judgments, even if ultimately successful on appeal.”

Thus the Court concluded that “a section 2055 car wash bond is not an appeal bond under section 98.2 subdivision (b).”

Appeal of Labor Commissioner Award Requires Specific Surety Bond

Leave a comment

Your email address will not be published.

Share:

More Posts

Send Us A Message

© Copyright 2022 Employment Law Weekly – A Division of Floyd Skeren Manukian Langevin, LLP, All rights reserved.

DISCLAIMER: The information on this site is for general information only. This information should not be construed to be formal legal advice nor the formation of a lawyer/client relationship with the authors of any of this information or their employers. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

Privacy Policy

Skip to content