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How long do I have to sue an employer for wrongful termination

Chico, CA |
Attorney answers 2

Posted

There is more than one type of wrongful termination under the law. Various different statutes of limitation apply depending upon the causes of action that you might be able to assert. Generally speaking, a claim for wrongful termination generally has either a one or two year statute of limitations in California. Labor Code violations have a three year statute of limitations. For violations of the Business and Professions Code (Unfair Business Practices) sections 17200-17500 and for breach of written contract, the statute of limitations in California is four years.

Before bringing a lawsuit for a violation of the laws protecting employees from discrimination and harassment, you must file a claim with the California Department of Fair Employment and Housing (DFEH) or Equal Employment Opportunity Commission (EEOC). The DFEH will either, investigate your claim and attempt to mediate your case, or you may request an immediate right to sue letter that allows you to proceed with a lawsuit. You must obtain a right to sue letter before bringing a lawsuit.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult with your own attorney.

Posted

The statute of limitation for the tort of wrongful termination in violation of public policy is two years. However, if you were terminated because you failed to follow procedure, there is no wrongful termination claim. When people talk about “wrongful termination,” they are really talking about wrongful termination in violation of public policy. For a termination to be “wrongful,” it must violate a public policy.

Public policy refers only to acts that are specifically prohibited by a statute (law) enacted by the legislature, not allowed under the state or federal constitution, or prohibited by a regulation promulgated (established ) by a government agency.

Public policy includes statutes prohibiting discrimination against people in specific protected groups, which include sex, race, national origin, disability, sexual orientation, age (40 years and older), religion, marital status, pregnancy, genetic information, and a few other categories.

Also, public policy prohibits discrimination against people who blow the whistle on a matter of public concern; complain about improper wage and hour practices; refuse to falsify documents (especially reports or certifications to the government); or who exercise voting rights, family leave rights, jury duty rights, domestic violence rights, and more.

To discriminate in violation of public policy means to treat individuals in one group differently from others who are not in the same protected group, but are similarly situated. Thus, an employer cannot change terms of employment or fire you if the reason for the change is against the law. For example, an employer cannot increase your workload because of your race, sex, national origin, religion, etc. or because you blew the whistle on safety violations.

There are various ways to enforce these rights, depending on the particular public policy involved.

The harsh reality is employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.avvo.com/legal-guides/ugc/an-overview-of-at-will-employment-all-states. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

Employment rights come from the state and federal legislatures. One of the best things working people can do to improve their employment rights is to vote for candidates who have a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in the union already in place.

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

*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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