To Be Unsuccessful on Appeal, Employee Must Have Merits Tried By Superior Court And Besieged With a Zero Award.
Labor Code section 98.2(c) is a one-way fee shifting provision that penalizes an unsuccessful party who appeals a labor commissioner’s decision, mandating that the court assess attorney’s fees upon the unsuccessful appealing party. In this context, “unsuccessful” means the employer does not nullify the commissioner’s decision or the employee suffers a zero award by the superior court rehearing the merits of the employee’s claim.
Arias v. Kardoulias, Case No. B234263 (2d Dist., Div. 3 July 26, 2012) (published) was a situation where an employee won a $6,319.69 unpaid wage award from the labor commissioner but appealed to the superior court to conduct a de novo hearing on her claim. However, her appeal was dismissed as untimely. The superior court then assessed $6,395 in fees and costs against appealing employee.
The issue on appeal brought by employee was whether a jurisdictional dismissal of an appeal based on untimeliness was equivalent to an award of “zero” for purposes of showing unsuccessfulness. The appellate court said “no,” finding that an employee can only be assessed with fees under section 98.2(c) if there is a “zero” merits determination by the superior court. After all, the untimely appeal meant that employer was still responsible to pay the $6,319.69 labor commissioner award, and employee garnered no fee recovery one way or the other given that fees are not recoverable for a wage claim before the commissioner. So, the $6,395 fee/costs award against employee went POOF!