Table of Contents
Prosecuting claims often depends on the whether the claim is timely, whether a separation agreement blocks the claim, and the appropriate venue for the claim.
- Harassment (Gov’t Code § 12940(j))
- Wrongful Termination (Violation of Public Policy Tort)
- Discrimination (Gov’t Code § 12940(a))
- Retaliation for Harassment and/or Discrimination Complaints (Gov’t Code § 12940(h))
- Failure to Prevent Harassment and/or Discrimination (Gov’t Code § 12940(k))
- Failure to Engage in Interactive Process (Gov’t Code § 12940(n))
- Failure to Provide Reasonable Accommodation (Gov’t Code § 12940(m))
- Retaliation for Requesting Accommodation (Gov’t Code § 12940(m))
- Discrimination and/or Retaliation based on Pregnancy (Gov’t Code § 12945(a))
- Failure to Provide CFRA Leave (Gov’t Code § 12945.2(k))
- Retaliation for Using CFRA Leave (Gov’t Code § 12945.2(q))
- Retaliation for Using Paid Sick Leave (Labor Code § 246.5(c))
- Retaliation for Refusing and/or Complaining about Illegal Conduct (Labor Code § 1102.5)
- Retaliation for Workplace Safety Complaints (Labor Code § 6310)
- Failure to Pay Commission and/or Bonus Wages (Labor Code §§ 200, 201, 202, 218, 1198; IWC Wage Order)
- Failure to Pay Minimum Wage (Labor Code §§ 1182.12(b), 1194, 1194.2, 1197, 1197.1; IWC Wage Order)
- Failure to Pay Overtime (Labor Code §§ 510, 1194, 1198, 1199; IWC Wage Order)
- Failure to Provide Meal Breaks (Labor Code §§ 226.7 and 512; IWC Wage Order)
- Failure to Authorize and Permit Rest Breaks (Labor Code § 226.7; IWC Wage Order)
- Failure to Provide Accurate Wage Statements (Labor Code § 226(a))
- Failure to Pay Wages Owed Timely (Labor Code §§ 201-203)
- Failure to Reimburse Necessary Expenses (Labor Code § 2802)
- Failure to Produce Personnel File (Labor Code 1198.5)
Statute of Limitations
- Breach of a Written Contract. Four years from the date the contract is breached. Code of Civil Procedure § 337.
- Discrimination, Harassment or Retaliation Statutory Claims. Claims must be filed with the DFEH within three years of the date of the discrimination or harassment. Government Code § 12960 (a).
- Fraud or Mistake. Three years from the date of the harm. Code of Civil Procedure § 338(d).
- Libel or Slander. One year from the date the defamatory statement is made. Code of Civil Procedure § 340.
- PAGA Claims. One year from the date of the violation. Code of Civil Procedure § 340; Labor Code §§ 2698-2699.5.
- Personal Injury. Two years from the date of the injury. Code of Civil Procedure § 335.1.
- Statutory Penalties. Typically one year from the date of the violation. Code of Civil Procedure § 340(a).
- Unfair Competition. Four years from the date the harm or wrongdoing occurred. Business and Professions Code § 17208.
- Unpaid Wages. Three years from the date the wages were owed. Code of Civil Procedure § 338(a).
- Separation Agreements, such as severance and release agreements, typically provide for a general waiver and release of claims by the employee in favor of the employer, in exchange for a payment.
- Separation Agreements do not always prevent former employees from asserting their legal rights. There are limits to the enforceability of certain parts of separation agreements.
- Employers must provide something of value that they do not already owe to the employee – referred to as “legal consideration” — for the overall agreement to be enforceable; an employer cannot simply promise to pay owed wages or vacation (or nothing at all) to support the agreement. Civil Code §§ 1605-1615.
- Claims for wages owed without any good faith dispute cannot be released or waived. Labor Code § 206.5.
- Claims for unreimbursed businesses expenses cannot be released or waived. Labor Code §§ 2802, 2804.
- Claims for unemployment insurance compensation cannot be released or waived. Unemployment Insurance Code § 1342.
- Claims for workers’ compensation insurance benefits cannot be released or waived. Labor Code § 5001.
- Any provision in a separation agreement (or in an employment, arbitration, or settlement agreement) that prevents a party from disclosing or testifying about the facts relating to workplace harassment, discrimination, or retaliation is prohibited and invalid (however, it is permitted to have a provision that keeps confidential the amount paid in settlement of a claim). Civil Code § 1001.
Venue for Addressing Disputes
- Pre-claim Negotiations. Many claims are asserted and resolved without filing a claim in an administrative agency, court, or arbitration. Employees and/or their lawyers assert claims informally and usually confidentially to their current or former employers, and the parties reach a settlement without having to file a lawsuit.
- Private Mediation. Mediation a voluntary settlement negotiation, but instead of between the parties directly, it is through a private, neutral person known as a “mediator.” The mediator is selected by mutual agreement of the parties. The mediation process is not binding, meaning that the mediator does not decide the dispute but instead merely facilitates a negotiation between the parties. Mediation is an option before or after filing a claim.
- Administrative Proceeding. The federal government and the State of California have administrative agencies tasks with enforcing employment laws. Anti-discrimination, harassment, and retaliation laws are enforced by the federal EEOC and California DFEH; wage-and-hour laws are enforced by the federal Department of Labor and California Labor Commissioner. Agencies are available to investigate and resolve claims, but workers who have lawyers often opt for litigation to resolve disputes.
- Court/Litigation. Federal and state courts are the venue for employment lawsuits. Litigation starts with the filing of a lawsuit, and includes discovery to gather evidence and “motions” by the parties based on legal arguments, and ends with a jury or bench trial unless the case settles first.
- Arbitration. Arbitration is similar to litigation except that instead of in federal or state court, it is before a private, neutral decision-maker (usually a retired judge), who is paid by the company. It is the same as court in that the decision is binding. Companies generally prefer arbitration because it prevents employees from filing “class” or group claims and because the case is not heard and decided by a jury.
- Class Claims. Class action lawsuits are that are filed on behalf of a group of employees based on a common set of facts and allegations. It often is in the wage-and-hour context challenging time, break, expense, and pay practices. Private Attorney General Act (PAGA) claims are when an employee may step into the shoes of the State of California to enforce Labor Code provisions on a group basis.
- California Department of Fair Employment and Housing (DFEH)
- U.S. Equal Employment Opportunity Commission (EEOC)
- California Labor Commissioner / Department of Labor Standards Enforcement (DLSE)
- U.S. Department of Labor (DOL)
- California Labor Workforce Development Agency (LWDA)
- California Employment Development Department (EDD)