FAQs: DEADLINES AND PRE-LAWSUIT CONSIDERATIONS
Q: Can I pursue a legal action against my employer?
Do you have a union? If so, you may consider pursuing a grievance.
Does the issue concern an injury you suffered on the job? If so, you likely need to go through the workers’ compensation system.
Otherwise, there are a number of laws that may apply, depending on whether you are an employee, the size of your employer, and the type of work that you do.
Q: My employer made a decision I do not agree with. How soon should I consult with an attorney?
As soon as possible. Depending on your circumstances, you may have as little as 45 days to take some action to preserve your right to pursue a claim in court.
Q: I think I have a discrimination claim. Can I go directly to court?
Not if you want to pursue your claim under laws that provide for attorney fees. You must first file a complaint or charge with an administrative agency: the state agency is the Department of Fair Employment and Housing, and the federal agency is the Equal Employment Opportunity Commission. Federal employees must go to their employer's EEO office. Before you pursue a claim under state law you need a "right to sue" letter from the DFEH; for a claim under federal law you need the same type of letter from the Department of Justice. If you want to pursue claims under both state and federal law, there are potential traps depending on which agency you go to and how the agency handles the complaint or charge.
Q: Can I go directly to court with a whistle-blower claim?
The answer depends on who your employer is and which law you base your claim on. If your employer is in the private sector (non-governmental), you can go directly to court. If you work for certain public sector (governmental) employers and sue under certain laws, you need to present a "tort" (government) claim with your employer within six months. You will need to file another type of claim with your employer or another agency depending on what type of work you do, e.g., civil servant, public school employee, California State University employee, University of California employee.
Q: If I disagree with a decision my employer made about me, should I use the employer's dispute resolution/grievance process?
There are a number of things to consider. The chance of success with your employer's process is likely less than before a jury. If you lose the dispute resolution/grievance proceeding you will likely not be able to make the same claim in court. If you have a discrimination claim, there is no need to use the employer's process. At the same time, depending on the nature of your claim and the employer's process, you may have no alternative but to use the process.
Q: I was given notice of layoff several months ago but I have not actually been laid off yet. Should I consult with an attorney now or wait until after the layoff?
The best course of action is to consult now. If you want to pursue a claim under state employment discrimination law, the period to file with the state agency (DFEH) starts at the time of the effective layoff date. But for a claim under federal employment discrimination law the time to get to the federal agency (EEOC) starts on the layoff notice date.