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Do I have to exhaust administrative remedies before I sue for violation of the whistleblower act?

Santa Barbara, CA |

Or can I file a whistleblower lawsuit right away? I have been getting mixed answers regarding this. Any answer is appreciated.

Attorney Answers 3

Posted

The reason you are getting mixed answers is because It depends which whistleblower act you are talking about. And it depends whom you are suing.

The Fair Employment & Housing Act has an anti-retaliation provision that requires you to obtain a right-to-sue letter prior to filing suit.

Labor Code §1102.5 has one case which says it requires exhaustion through the Labor Commissioner, and another case which says it doesn't. The governor recently signed a bill that is supposed to say that no exhaustion is required, but it's not as clearly written as it could be, and it's not clear if it's retroactive or not.

There are other whistleblower retaliation provisions, such as the State Personnel Board Act, which require exhaustion.

You will need to consult an employment attorney, and be more specific in your question, before you can get a definitive answer.

Good luck with your legal issues.

Sincerely,
Craig T. Byrnes
www.ctblawfirm.com

Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.

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Asker

Posted

I am referring to Labor Code Section 1102.5

Asker

Posted

Also...for the case that you mention that states that remedies should be exhausted, I believe this wasn't until 2012 or 2013. This happened earlier than 2012 though so shouldn't the court disregard (if other side mentions it as defense) it for my situation since it wasn't in effect when my situation took place?

Craig Trent Byrnes

Craig Trent Byrnes

Posted

The cases have gone back and forth, and no, the courts don't "disregard" the opinions of other courts because they came after your case. The cases determine what the law says, and it usually applies to all cases under that statute, no matter when they originated. As I said, under Ca. Lab. Code §1102.5, one case says administrative remedies don't need to be exhausted, and another case says they do. A statute which just passed was intended to say that remedies don't need to be exhausted, but it's not clear if it applies retroactively. That's the reason you're getting mixed answers: the law is still unclear on this issue.

Asker

Posted

I see...ok then. Can you tell me what the statute is that just passed/that governor signed? What is it called?

Craig Trent Byrnes

Craig Trent Byrnes

Posted

Look at S.B. 666, which created Ca. Lab. Code 244(a): An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought requires expressly requires exhaustion of an administrative remedy.

Asker

Posted

ok...thanks a lot

Asker

Posted

I asked this question a few months ago, and I want to mention that I was an employee of the University of California...does that change any of the things you stated above?

Posted

Your post contains way too little information to provide an answer. Are you a government employee? A union employee covered by a collective bargaining agreement? Which of the dozen or so whistleblower statutes are you referring to? An answer cannot be given with out this and more detail.

You would be best served by locating and consulting 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.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Asker

Posted

I am referring to labor code section 1102.5

Asker

Posted

I am referring to a public entity employee

Posted

Whistle-blower laws are far more narrowly drawn than most lay-persons imagine and expect, and the application of these laws to various factual situations can turn on some very technical and difficult factual distinctions. No one should ever -- EVER -- act on the presumption that whistle-blower laws and protections will apply unless and until there has been skilled and experienced legal advice on that specific issue. Consult first.

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