Third-party service fails to deliver, leaving employer with $75,000 in damages

How serious is it to be one day late? Sometimes, very serious. In a recent case, that one day cost $75,000 because the court allowed no slack to an appeal deadline.

A day late, $75,000 short

To obtain review of a California Labor Commissioner decision, a party must file a timely appeal to the superior court. It must file the appeal within 10 days of service of that decision, or within 15 days where, as here, the decision was served by mail.

In addition, when an employer pursues an appeal, it must simultaneously post an undertaking in the amount of the challenged award. Because the undertaking is “a condition to filing an appeal” from a labor commissioner’s decision, the employer must either post the undertaking or, in the event of indigency, apply for a waiver within the same deadline applicable to the filing of an appeal. These procedures aim to encourage the prompt payment of wages due and to discourage employers from filing frivolous appeals and hiding assets.

Nicole Dobarro filed a labor commissioner’s claim against her employer, Edward Kim. After a hearing, the labor commissioner awarded her $74,419.82 based on unpaid overtime and other violations. The labor commissioner’s decision was served by mail on August 14, 2024.

Kim retained a third-party filing service, which attempted to electronically file a notice of appeal and a motion for a waiver of the undertaking requirement on August 29, the last day for filing an appeal to the superior court. On August 30, the court clerk rejected Kim’s electronic filing. The service filed the documents in person that same day.