subject: Employment Law Attorney Los Angeles [print this page] Many of our California employee clients are surprised to learn that they must file a claim with an administrative agency before we can file a lawsuit in a state Superior Court says employment attorney in Los Angeles. This doctrine is called "exhaustion of administrative remedies". Your attorney (as we do) should be able to file the claim on your behalf and at the very least assist you in preparing the claim. Generally, and we'll get into some specific applications further down this article, you must:
1. File a claim within a relatively short period of time. These time frames generally vary from six months to two years. In the case of a complaint filed with the Department of Labor Standards Enforcement (DLSE), an aggrieved employee has six months to file a claim. This would cover retaliation or discrimination against the employee for complaining to a state or federal agency regarding an unsafe working condition. A more common complaint is for discrimination based on any of the usual suspects of age, sex, race, national origin, physical or mental condition discrimination, harassment or retaliation. The Department of Fair Employment and Housing requires that a complaint be filed within 365 days of the last incident. A complaint to the Federal Equal Employment Opportunity Commission must be filed within 300 days. Generally,we recommend that clients file with their state agency. A little known fact is that in California as a "workshare" state, a complaint filed with one agency will be automatically cross-filed with the other. (While beyond the scope of this blog, a cross-filed complaint may allow you to file a lawsuit many years later as long as the "other" agency hasn't yet closed their file.)
When a deadline to file with an administrative agency is missed, there is very little opportunity to allege any type of "equitable tolling" and the right to pursue that particular cause of action in court may be lost. That does not mean that all is lost, however, as other causes of action may in one form or another cover the same claim. With regard to claims against public agencies for non employment (like falls on public property, contract claims), the courts may extend the period of time to file a claim from six months to one year.
2. Seek a "closing" document, so that the court is assured you have "attempted" to settle through the administrative agency. Once this document (usually called a "right to sue" letter) is obtained, it is attached to the Superior Court (or Federal District Count) complaint to prove to the court that the administrative exhaustion has occurred. Some law firms simply allege the closing document has been sought and obtained; we believe it is important to actually attach the documents. By "documents", we refer to the original charge with the administrative agency and the closing document issued by that same agency.
3. Timely file your lawsuit in Superior Court within the time allowed by that particular agency's controlling laws. You have one year from the date of receipt of a right to sue letter from the California Department of Fair Employment and Housing to file your lawsuit. There are a few cases in which the time period in which to file a lawsuit may be extended, usually due to the unavailability of the employee-plaintiff. This may be mental incapacity, jaiil, military service or being out of state.
There are numerous advantages to filing with an administrative agency before filing in court. In some cases, where a small amount of money is involved (such as unpaid wages, overtime, missed meal and rest breaks, the agency (eg, DLSE) can get you full reimbursement plus waiting time penalties (usually up to 30 days after employment has ended). We generally do not pursue full relief through administrative agencies and attempt to have the agency close out the file as soon as possible so that we can initiate court action. Many agencies will delay several years (not their fault, its just a matter of manpower) and in that time, you may lose your right to file other causes of action (such as public policy tort termination, intentional infliction of emotional distress, unfair business practices, breach of contract or the covenant of good faith and fair dealing, etc.) in court. Witnesses may have died, moved away, or become so entrenched with your former employer that it is difficult to get truthful recall of what you suffered in the workplace. A final reason to be cautious about the administrative agency pursuing your claim to its conclusion is the very real possibility of a hearing on the merits resulting in a finding of no discrimination. This in turn may be presented by the management attorneys to the court with a request to dismiss your lawsuit since a "second trial" is really not needed.
It's important to know which administrative agencies exist for your type of claim; whether la claim form is required before filing in court, and; what time period you have following your receipt of a closing letter from the administrative agency to file in court. These are jurisdictional questions which provide the court with no discretion to toll the statute of limitations. Its critical to have legal counsel experienced in administrative claims in your jurisdiction.
Worker's Compensation claims are not included in this article since there is a separate administrative body in California (the "Workman's Compensation Appeals Board") at which these claims must be filed. We do not practice workman's compensation but maintain a referral relationship with approximately 100 of California's top workman's compensation attorneys and will be happy to refer you to several geographically close to you. As with administrative claims, time limits apply to when and under what circumstances you can file a work comp claim. If you are discriminated against as a result of filing such a claim, Danz & Associates can represent you in civil court.
As always, this article is not meant as legal, only educational advise. Seek the advise of an experienced employment attorney in your jurisdiction. We practice out of ten offices located throughout California and are licensed in all state and federal courts of this state says employment attorney in Sacramento.
