Employer Argues Labor Commissioner Delay Resulted In Loss Of Witness.

A security guard complained to his employer about not receiving his paychecks and said he would go to “the Labor Board.” He was fired. Over three years later, the Labor Commissioner determined “there is reasonable cause to believe [the employer] violated the Labor Code,” and directed the employer to cease and desist retaliation, offer the employee reinstatement to his position, or a similar position, and pay back wages of $86,094.56. The employer lost its appeal to the Department of Industrial Relations, and the employer petitioned for writ of mandate to command the Labor Commissioner to retract its determination. While the writ was pending, the Labor Commissioner filed a complaint in superior court for injunctive relief to enforce the order. Meanwhile the Labor Commissioner demurred to the writ petition, brushing aside the employer’s argument that Labor Code section 98.7, required a determination within 60 days by arguing the deadline was directory, not mandatory. The Labor Commissioner also argued the employer could raise the issue of delay and loss of its witness in the suit to enforce the order. The superior court ordered the writ petition dismissed. The appellate court agreed, concluding the employer could raise its points in defense to the Labor Commissioner’s action to enforce the order.  (American Corporate Security, Inc. v. Julie Su, as Labor Commissioner (Cal. App. Third Dist.; September 27, 2013.) 220 Cal.App.4th 38, [162 Cal.Rptr.3d 563].