Result Reminds Employers To Carefully Request A De Novo Review Of An Adverse Labor Commissioner Ruling In Favor Of Ex-Employees.
Chilpa v. American Concrete Polishing Co., Case No. B294648 et al. (2d Dist., Div. 4 Oct. 4, 2022) (unpublished) is another opinion with a cautionary warning for employers suffering an adverse wage/hour Labor Commissioner decision: if you appeal against the ex-employees and lose again in a de novo superior court trial, you will be liable for attorney’s fees which likely will be substantially more than the Labor Commissioner awards made in the first instance.
Two ex-employees won $15,400 aggregate against ex-employer in a Labor Commissioner hearing. Employer “appealed” and lost again in a de novo superior court trial where ex-employees won about $31,554 in the aggregate. But here is the kicker: ex-employees moved for attorney’s fees under Labor Code section 98.2 (which allows the prevailing party in the de novo trial to obtain fees), and they were awarded $36,520 plus a positive 1.5 multiplier for a total fee award of $54,780. Employer only challenged the 1.5 multiplier, but there was no indication it opposed the fee request, and the moving papers showed the ex-employees’ attorneys took the matter on contingency (a factor which can justify a positive multiplier). So, the multiplier challenge was rejected by the appellate court.
Again, not to beat a drum we have beaten many times before, wouldn’t employer been better off to pay the $15,400 Labor Commissioner award rather than now paying ex-employees $86,334 (inclusive of fees) as well as having to pay its attorneys for the various administrative, superior court, and appellate proceedings?
Thanks for blogging about this case. I'm the ex-employees' attorney, Eugene Lee. To add to your point, I will shortly be filing another motion for attorney fees after appeal, so the amount is bound to go higher. The Presiding Justice actually recommended I do so at oral argument.
Posted by: Eugene Lee | October 05, 2022 at 12:51 PM