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Labor Commissioner Wage Hearing Appeals are
New (De Novo) Trials in Superior Court

Posted on October 2013 by S. Ward Heinrichs
Labor Commissioner Wage Hearing Appeals are New (De Novo) Trials in Superior Court

Recently, our firm represented an employee in a trial de novo appeal of a Labor Commissioner wage hearing which had been held under the rules of Labor Code §98.[1] The hearing officer had awarded our client a sizable amount of unpaid wages. The employer decided to appeal the award. It properly sent notice as provided under Labor Code §98.2.

Labor Code §98.2 provides that “. . . the parties may seek review by filing an appeal to the superior court, where the appeal shall be heard de novo.”[2] The term de novo is a Latin phrase that means “over again” or “anew”. The Courts perceive it to mean that the record, findings, and award of the Labor Commissioner are void and the superior court hears the case as if for the first time:

The statutory trial de novo (see § 98.2) “is neither a conventional appeal nor review of the Labor Commissioner’s decision, but is rather a de novo trial of the wage dispute” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1116), and the court ” ‘hears the matter, not as an appellate court, but as a court of original jurisdiction, with full power to hear and determine it as if it had never been before the labor commissioner’ ” (id., at pp. 1116-1117, quoting Collier & Wallis, Ltd. v. Astor (1937) 9 Cal.2d 202, 205, italics added.[3]

Although denoted an “appeal,” unlike a conventional appeal in a civil action, hearing under the Labor Code is de novo. (Lab. Code, § 98.2, subd. ” ‘A hearing de novo [under Labor Code section 98.2] literally means a new hearing,’ that is, a new trial.” (Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 835.) The decision of the commissioner is “entitled to no weight whatsoever, and the proceedings are truly ‘a trial anew in the fullest sense.’ ” (Sales Dimensions v. Superior Court (1979) 90 Cal.App.3d 757, 763 [153 Cal.Rptr. 690].) The decision of the trial court, after de novo hearing, is subject to a conventional appeal to an appropriate appellate court. (1 Wilcox, Cal. Employment Law, supra, § 5.18[2] [a], p. 5-46.) Review is of the facts presented to the trial court, which may include entirely new evidence. (See Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561 [38 Cal.Rptr.2d 221]; 1 Wilcox, Cal. Employment Law, supra, § 5.18[3], p. 5-49.)[4]

Another reason the Labor Commissioner’s record cannot be used at a trial de novo is that the Labor Commissioner allows almost all hearsay into evidence. In contrast, California Superior Courts do not, unless the evidence falls within an exception.

Additionally, pre-trial motions should generally not be allowed in de novo appeals from a Labor Commissioner hearing. The legislature provided the Labor Commissioner hearing process to help employees quickly recover wages they are owed. The de novo appeals process was also devised with quick resolution in mind. Motions, discovery, and pre-trial hearings delay the process and make it much more expensive. Accordingly, the Superior Court should hear the trial de novo soon after the request for appeal is filed. That would support the policy to resolve wage issues quickly.

Regardless, the employer’s attorneys convinced the Superior Court judge to hear a Motion for Summary Judgment. Their goal was to convince the Court to dismiss the Labor Commissioner’s wage award without a new trial. They had convinced the judge to do that before our client had contacted us.

We were forced to oppose the employer’s motion and argued that the employer did not have the right to file a Summary Judgment Motion based on the Labor Commissioner’s record and findings. We also argued that our client should win for other reasons. The Court denied the employer’s motion. The Court declined to say whether or not the employer was entitled to bring the motion, rather, it said that the employer could not win because the facts in the Labor Commissioner’s record did not support dismissal of our claim.

Despite the Court’s ruling, we feel confident that the party who chooses to appeal a Labor Code §98 Labor Commissioner ruling cannot use the Labor Commissioner’s hearing record to support its case.[5]

[1] All references to the Labor Code are to the California Labor Code.

[2] Labor Code §98.2(a).

[3] Martinez v. Combs, (2010) 49 Cal.4th 35, 65-66.

[4] Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942 , 947-48.

[5] Possibly, statements in the record could be used to impeach statements later made in Court at the Trial de novo.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
(858) 408-7543 (fax)

Employment Law Office of WARD HEINRICHS

4565 Ruffner St. Suite 207 San Diego 92111


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