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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


  1. Best answer

    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.


  2. 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.


  3. 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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