Can you please tell me the difference between "last day worked" and "last day of employment" as it relates to a DFEH complaint?

Asked 8 months ago - Napa, CA

As the result of an industrial accident, I was off work -- receiving SDI, not temp disability payments through Workers Comp -- for six months when I then quit. My employer continues to deny the injury in spite of a large number of witnesses and medical professionals who have declared it industrial. I filed a complaint with DFEH (also many witnesses to the clear discrimination and harassment) which has been under investigation for several months. I received a letter from DFEH stating my case is being denied because my complaint was filed after the one year statute of limitations and states they use "last day worked" as final date of harm. By using my last day worked before being put on medical leave, I did miss S of L cut off, but if using last day of employment, I did not.

Attorney answers (4)

  1. Neil Pedersen

    Contributor Level 20

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    Answered . First, you have posted this in the Workers Compensation practice area. FEHA claims are not brought in that venue and you might be better off re-posting in the Labor & Employment practice area.

    Second, the "statute of limitations" (actually a misnomer) referred to by the DFEH is a little different from how you are understanding it. You are required to file a DFEH complaint within a year of the event or conduct of which you wish to complain about. In other words, you have to file the FEHA complaint within a year of the act of discrimination, harassment or retaliation that constitutes a violation of FEHA that you are complaining about.

    Having missed that deadline, you are not completely out of luck. First, if you have a claim of termination that violated FEHA, you may still have a claim for wrongful termination in violation of public policy. No FEHA complaint is required for that cause of action and there is a 2 year statute of limitations. If you qualified for FMLA leave and were wrongfully denied it, you still have time as well as there is no duty to exhaust your administrative remedies for that claim.

    One last note: the DFEH has nothing to do with whether your injury claim is industrial or not. That is a workers compensation issue. The DFEH will only address issues of whether you were subjected to unlawful discrimination, harassment or retaliation, based on your membership in a protected class of people, like disabled persons.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  2. Brett A. Borah

    Contributor Level 20

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    Answered . Last date worked has to do with the last date you were physically on the job. Last date employed has to do with the date the employer took you off of the employment rolls. In your case, it sounds like there is a period of about 6 months between the two dates.

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  3. Christian K. Lassen II

    Pro

    Contributor Level 20

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    Answered . Pedersen laid it out well

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  4. Lee Alan Thompson

    Contributor Level 20

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    Answered . Going to move this for you.

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