Parker

This case presents the question of whether an employer’s failure to post an undertaking pursuant to Labor Code section 98.2, subdivision (b) deprives the trial court of jurisdiction to consider the employer’s appeal of the State of California Labor Commissioner’s (Commissioner) award in favor of the employee. The trial court implicitly denied employee Ron Parker’s motion to dismiss employer Progressive Concrete, Inc.’s (Progressive) appeal of the Commissioner’s award of unpaid sales commissions and, after a de novo bench trial, entered a judgment awarding him a lesser amount than the Commissioner’s award. On appeal to this court, Parker contends that because section 98.2, subdivision (b) provides an employer filing an appeal “shall” post an undertaking in the amount of the Commissioner’s award and Progressive did not do so, the trial court erred by denying his motion to dismiss Progressive’s appeal of that award.

FACTUAL AND PROCEDURAL BACKGROUND

During the period July 1996 through March 2001, Parker apparently was employed by both Progressive and Concrete Images International, Inc. (Concrete) (together Employers), as a sales coordinator. He was to be paid commissions…