How Long Do I Have To Sue An Employer In California If I Feel I Was Retaliated Against For Taking Disability?

Dealing with a disability of any kind is frustrating on its own. In these situations, you need income in order to survive – but what happens if your employer challenges this? You are entitled to certain rights as an employee. If you were retaliated against by your employer for collecting disability, you may have the ability to sue them. How does this process work? Read on to find out…

Was The Claim For Retaliation Under State Or Federal Law?

In these situations, there may be several different claims at play, and thus, different time frames must be kept in mind. For example, for a California employee, a claim for retaliation for taking a medical leave may be brought under either Federal law or California law. The California statute has benefits and terms that require that available damages that are not recoverable under Federal law.

It is possible that you may have California and Federal claims relating to disparate treatment based on your medical condition. If this is the case, discrimination based on a perceived disability under the Federal ADA law and the California equivalent may be something to consider.

Administrative Agency Approval May Be Required In Some Cases

Some disability claims require that an employee file with an administrative agency before filing a court case. Not until an employee receives a “right to sue” letter from the appropriate agency can they file a lawsuit. This is because they may risk a lawsuit or dismissal for failing to obtain this letter. The administrative filing outlines the basis of the wrongful conduct, much like a complaint in a court case would do.

State Versus Federal Law: Are There Different Deadlines?

A deadline to sue also called the statute of limitations for a claim can be complex in certain employment matters because of the multiple deadlines and differences between State and Federal law. Below is an outline of the different time requirements as of June 2023 indicating the statute of limitations.

Retaliation Under The Family and Medical Leave Act

An employee who believes his or her rights under the retaliation under The Family and Medical Leave Act FLMA) have been violated has the choice to:

• File a complaint with the US Department of Labor (Wage and Hour Division) within “a reasonable time” from when the employee discovers that their FMLA rights have been violated.
• File a private lawsuit. A suit must be filed within two years of the last action that an employee believes was in violation of the FMLA, or three years if the violation was willful. A court will decide (1) if there was a violation; and (2) whether the conduct was willful or not. Keeping this in mind, it is recommended that you consider the two year timeframe.

It is important to note that in these cases no “right to sue” letter is required.

Retaliation Under The California Medical Leave Law

As an employee of a California company, you may consider bringing a claim for retaliation under the California equivalent to the FLMA, referred to as “CFRA,” against your employer. This state law claim would require that you:

• File a complaint with the Department of Fair Employment and Housing (DFEH) in California within 3 years of the alleged unlawful act. In this situation, the behavior would have taken place over a period of time after you returned from leave. This is sometimes referred to as a “continuing violation”, which arguably means that the unlawful act was as late as the last review on your PIP. To be cautious, filing a complaint with DFEH before the 3-year anniversary of your return from leave is recommended.
• Once you obtain “a right to sue letter” from the DFEH, any civil lawsuit must be filed within one year from the date of the letter.

Other Claims

In some cases, disparate treatment for medical conditions and discrimination based on perceived disability may be something worth pursuing.

Under both California and Federal law, these claims require that an employee file with an administrative agency and obtain a “right to sue” letter before filing a court case. This includes California’s DFEH for state claims, and the Federal EEOC for Federal claims.

If this is the case:

• The California statute gives three years from the unlawful conduct to file.
• The Federal statute calls for 300 days after the unlawful act occurred. As for ongoing conduct, every time it transpired, it could restart the 300-day clock.

Once you have a “right to sue” letter:

• A lawsuit alleging state law claims must be filed within one year of the date of the “right to sue” letter.
• A lawsuit alleging Federal claims must be filed within 90 days of the date of the “right to sue” letter.

These deadlines are very important. The safest course of action is to adhere to the shortest deadline to file administratively to preserve all the potential claims.

Considering A Lawsuit? Call Hudson Martin PC Today!

Our office is proud to serve Monterey, Santa Cruz, San Benito, and San Luis Obispo counties.

If you are considering a lawsuit and have not already done so, ask the employer for a copy of your personnel file – including all onboarding documents, the employee handbook, all policies, and exit documents. You should also request a copy of all documents relating to your medical leave.

For assistance with this, Attorney Jeannette Witten stands by to advocate for you no matter what. To get started with an initial consultation, contact our office today!

Note: The Information Provided On This Website Is For General Informational Purposes Only And Is Not Intended To Be Legal Advice. The Content Of This Website May Not Reflect Current Legal Developments And Is Subject To Change Without Notice.