No Tolling of Deadlines in Appeal from California Labor Commissioner

In a cautionary tale for employers, a California appellate panel held that the deadline for appealing a Labor Commissioner decision is mandatory and jurisdictional, ending an employer’s attempt to reverse an award.

Nicole Dobarro filed a claim against Edward Kim and his business with the Labor Commissioner’s Office. 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 Aug. 14, 2024.

To obtain review of a Labor Commissioner decision, a party must file a timely appeal to the superior court pursuant to Section 98.2 within 15 days of the decision where it was served by mail.

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 Aug. 29, the last day of the 15-day period for filing an appeal to the superior court.

On Aug. 30, the clerk rejected Kim’s electronic filing. The service filed the documents in person the same day.

Dobarro opposed Kim’s waiver motion, arguing that the court lacked jurisdiction over the matter due to Kim’s untimely filing.

The trial court sided with Dobarro and held that Kim’s appeal was untimely. Kim appealed, but the appellate panel affirmed.

Kim did not dispute that he missed the statutory deadline; instead, he argued that the deadline was subject to equitable tolling.

The court, however, disagreed, relying on Pressler v. Donald L. Bren Co., a California Supreme Court decision that determined Section 98.2’s deadline for seeking review of a Labor Commissioner decision is “mandatory and jurisdictional.”

A late filing of a notice of appeal may not be excused on the grounds of mistake, inadvertence or excusable neglect, the court explained. The only exception is fraud, which Kim did not claim.

Kim tried to point to a tolling statute and an unreported superior court decision, but the court declined to rely on either as they were inapplicable and improper.

“Because Kim’s notice of appeal and application for a waiver of the undertaking requirement were untimely, the trial court lacked jurisdiction,” the court concluded.

To read the opinion in Dobarro v. Kim, click .

Why it matters: The court was clear that the statutory deadline does not permit equitable tolling, nor may it be excused for mistake, inadvertence or excusable neglect. As the deadline is mandatory and jurisdictional, employers should ensure that appeals from Labor Commissioner decisions are made within the applicable time period pursuant to Section 98.2.