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My retaliation claim was dismissed by the DLSE and then again on appeal. Do I have any other options at this point?

San Diego, CA |

I am a Licensed Vocational Nurse and had been working for this employer for two years and seven months. I was wrongfully terminated after reporting nursing home violations to the state surveyors. I was terminated without notice several months after the first time I spoke with the state. During this time I was yelled at, belittled, demoted, suspended without cause and some other things before actually finding out I was fired. I won a case at the DLSE against the employer for unpaid wages and since then the employer has made up terrible lies as to why I was fired. Because of this, my claim of retaliation was denied and when I appealed, it was denied again. Is there anything I can do?

My wage claim award from the DLSE, (almost 20 thousand dollars), was promptly appealed by my employer. The law and the DLSE manual very clearly states the employer must post a bond in the amount of the award when the appeal is filed. The employer is also required to provide written notification to the DLSE and the employee that the bond has been posted. I am in the middle of this appeal hearing now but the bond has never been posted. Does this mean the appeal should never been accepted by the court or what?

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Attorney answers 1


Generally, exhaustion of your administrative remedies for Labor Code violations are not a requirement for filing a civil action. Assuming the statute of limitations is not expired, you can file a lawsuit in Superior Court regardless of the DLSE decision on the merits. While the denial of your retaliation claim by the DLSE may suggest that your claim is not strong, the DLSE has little incentive and time to investigate the facts as thoroughly as a private attorney. Do not let the DLSE's decision discourage you from speaking to an attorney regarding the evidence and filing a lawsuit. If you blew the whistle on regulatory or statutory violations and then suffered a retaliatory termination, you could have a common law claim for wrongful termination (a "Tameny" claim) and statutory claims under Labor Code sections 1102.5 (whisteblower), 6310 (Cal. OSHA) and/or 98.6. Good luck.