DFEH complaint deadline: one year since last day of employment or one year since last day active in the job?

Asked 8 months ago - San Francisco, CA

I need clarification on the DFEH deadline to file a complaint. My complaint was filed less than a year after I resigned, but more than a year after my last day active on the job (I was on medical leave for an extended period before resigning). DFEH accepted my claim for investigation and for six months they said they worked on my investigation, but after that time, they rejected it saying I'd missed the filing deadline because they go by the last day physically on the job being the last possible day of injury, not the last day employed. If it were so that the claim would have needed to be filed within one year of my last day physically at work, why would they have accepted my claim for investigation and, even more puzzling, why would it have taken them six months to have realized that?

Attorney answers (3)

  1. Neil Pedersen

    Contributor Level 20

    2

    Lawyers agree

    Answered . The deadline for filing an adminstrative complaint with the DFEH is one year from the act about which you seek to complain. That date may not be either of the dates you ask about. If you were discriminated against, the deadline would be one year from the day you experienced the adverse employment action upon which you wish to complain. Same as to retaliation or harassment.

    Keep in mind that missing the FEHA deadline, while a tough blow, does not necessarily end all of your rights. If you were wrongfully terminated, you have two years to file a lawsuit. If you were racially harassed, retaliated against or discriminated against, you can even file within four years of the act under an obscure federal statute.

    Main thing is get to an attorney right away. Locate and consult with an experienced employment law attorney as soon as possible to explore your facts and determine your options. I would suggest you look either on this site in the Find a Lawyer section, or go to www.cela.org, the home page for the California Employment Lawyers Association, an organization whose members are dedicated to the representation of employees against their employers.

    Most employment attorneys who practice this area of law work on a contingency basis, meaning you can hire an attorney without paying any money until the matter results in a positive outcome for you. Many advance all the costs of the litigation as well. Do not let fear of fees and costs keep you from finding a good attorney.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed... more
  2. Marilynn Mika Spencer

    Contributor Level 20

    2

    Lawyers agree

    Answered . The one-year statute of limitation starts from the date of the adverse action the charging party (you) is complaining about. For example, if you resigned because your employer told you that you had to come back to work the next day or you would be fired, then the date the employer communicated this was the date of the adverse action (assuming you had a legal right to continue your leave under FMLA, California Family Rights Act (CFRA) - the California equivalent of the FMLA - the ADA or the Fair Employment and Housing Act - the California statute that is similar to but better than the ADA, or any other law).

    You probably need an attorney to deal with this. Very rarely, the DFEH will correct an error it made. More often, you will need an attorney to file a lawsuit in court where the judge will decide if your DFEH claim was timely. Of course, the employe will argue that the DFEH was correct and is entitled to deference. Your attorney can present law and argument in support of your decision.

    Without knowing a lot more details, it is not possible for anyone on Avvo to figure out if the DFEH representative was correct.

    To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

    I hope you can resolve your situation and wish you the best.

    @MikaSpencer * * * twitter.com/MikaSpencer * * * PLEASE READ: All legal actions have time limits, called statutes... more
  3. Jonathan Aaron Weinman

    Pro

    Contributor Level 17

    1

    Lawyer agrees

    Answered . First, the DFEH is drastically overworked and underfunded, which would explain why an investigation takes as long as it does. Second, the DFEH often "accepts" claims to investigate which does not mean the DFEH believes the claim has any merit. Third, you generally must file a deadline with the DFEH within one year of the end of your employment. It is possible the DFEH, after consulting with your former employer, determined the end of your employment to be the last date that you worked, versus the date you actually resigned. While statutory deadlines may have expired, you should consult with an employment attorney to determine if you have any claims that could be active. Good luck.

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