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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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California Government Employee Rights

We find that many of our California government employees clients are not aware that public employees face a multitude of restrictions on their right to sue their employer which are not faced by employees who do not work for public entities.  To make things even more complicated, some restrictions apply to almost all public employees, while others apply only to public employees of particular public employers. Today, this blog will talk about one of the most common restrictions, the requirement that a public employee file a government claim with his employer before he can sue. Los Angeles employment attorneys can help you recover in your public employment llawsuit

Most persons or companies, including public employees, who want to file an action seeking monetary damages from their public employer must first file a “claim” under the California Government Claims Act.  (See California Government Code §§ 905, 910)  Generally, no suit for money or damages may be brought against a government entity or employee (acting in the scope of employment) unless a timely claim has been presented to the entity, and the entity acts upon the claim or the claim is rejected by the passage of time.  See, Government Code §§ 945.4, 950.2, 912.4)  Even though language about “tort” claims is often used, the Act is not restricted to torts; it applies to all suits for money or damages, including contract claims. Hart v. Alameda County (1999) 76 Cal. App. 4th 766; Baines Pickwick Ltd. v. City of Los Angeles (1999) 72 Cal. App. 4th 298.

Failing to file a proper claim can bar the right to collect money or damages which otherwise are clearly owed to a public employee.  The Act sets a very short time limit for filing a claim–6 months!  (The time can possibly be extended under certain circumstances.)  So get that claim filed quickly.

To make things even more complicated, many public employers have their own forms on which a claim should be filed.  Most of our clients don’t know that the use of the employer’s claim form is not mandatory.  On the other hand, the Act sets out very specific requirements about what information must be included in a proper claim.  See, Government Code § 910.  Many employer claim forms call for the appropriate information.

Sometimes, our clients have failed to file a proper claim within the six-month time period.  There is a doctrine known as “substantial compliance,” which can sometimes be used to overcome this problem.  A doctrine is somewhat complicated, but basically states that a communication to the public entity within the six-month time period which contains enough information to place the entity on notice that a lawsuit may be filed and allow the entity to investigate and evaluate the claim to determine whether settlement is appropriate.  See, Phillips v. Desert Hosp. Dist. (1989) 49 Cal.3d 699, 706.  Whether such a communication satisfies the requirements of the “substantial compliance” doctrine requires a careful analysis of the communication and the circumstances under which it was sent, as well as to whom it was sent.

Yet another twist and turn in this area is that even claims failing the “substantial compliance” test obligate the public entity to warn the claimants of the defects or face the penalty of waiving noncompliance as a defense!  Thus, a document which puts the public entity on notice that a claim for money damages exists and litigation may ensue triggers the requirement for notice of “defects” in the “claim.”  Phillips v. Desert Hosp. Dist., supra. Failure to give this notice waives the defects in the “claim.”

Even more deadlines are set up by the Act.  A lawsuit must be filed within six months after the claim is denied, either by the entity rejecting it or by the passage of 45 days from the time the entity receives the claim.  Government Code § 945.6(a)(1).

There are exceptions to the need to file a claim with the entity before filing suit.

Certain exceptions are defined in the Act itself:

Some have to do with the type of entity: no claim is required for suits against the Regents of the University of California, which have waived tort filing requirements.  Government Code §§ 905.6, 943.

Some have to do with the type of claim.  In Section 910, certain type of claims are exempted from the requirement of filing a claim under the Act before filing a lawsuit.  But be careful.  These exemptions are construed very strictly by the courts, and even though your claim might seem like it comes within an exemption, case-law may say that it does not.

WHEN IN DOUBT, FILE A CLAIM!

Also, even when a claim is specifically exempted from the Government Claims Act, section 935 of the Act allows local entities (such as a city) to adopt their own rules for claims not covered under the Act, requiring presentation of a claim to the local entity before a lawsuit can be filed against them.  This potential trap must always be checked.

Other exceptions are not found in the Act itself.

For instance, a claim under the Government Claims Act may not be required if the claim is based on rights under federal law.  Thus, a lawsuit for violation of an employee’s federal civil rights does not require the filing of a claim under the Act.

Further, it is not necessary to file a claim under the Act for claims based on violations of California or federal anti-discrimination laws such as the California Fair Employment and Housing Act or the federal Equal Employment Act.  But this is not the end of the need to file a claim.  Employees wanting to file a lawsuit for discrimination must first file a claim with either or both  the California Department of Fair Employment and Housing (DFEH)(for California anti-discrimination laws) or the Equal Employment Opportunity Commission (EEOC) (for federal anti-discrimination laws).  These Acts have their own time limits.  For claims with DFEH, the claim must be filed within one year of the last act of “like-kind” discrimination.  For claims with the EEOC, such a claim must be filed within 360 days.

Once a claim is filed, the entity must accept or reject it within 45 days or it is automatically rejected by the terms of the Act.

If the claim is rejected by entity (which almost always is the case) a lawsuit must be filed within 6 months after rejection of claim.  Government Code § 945.6(a)(1).  This deadline takes the place of the normal statute of limitations for torts.  Remember, the claim may be rejected by the passage of time (45 days) and the 6 month time period will begin to run even if you do not get any notice.  Don’t miss this deadline!

In a later blog, I will discuss such things as whether a public employee must also first file a grievance or appeal regarding some type of action taken against him by his public employer before he can file suit, and whether he must when the grievance or appeal before he can file suit.  Also to be discussed at a later time is the question of whether or not there exist other types of claims which require that a complaint of some sort must be filed before filing suit.  These issues concern what is called the “exhaustion of administrative remedies” doctrine.  This is an area of the law which in itself can be quite complex, and form a sort of “trap” for the unwary or unknowledgeable public employee.

We are pleased to report a victory for public employee Khosrow Kamali against the State of California Department of Transportation. Mr. Kamali was able represented by R. Hlenningand was a highly-regarded civil engineer. He claimed that his supervisors conducted a harassment and intimidation campaign by repeatedly conducting surveillance on his and check his time reporting.  When he filed a complaint, his boss then began investigating his past performance and attendance. Not content to just do that, the supervisor then reported Kamli was defrauding them. The jury found that Kamali was discriminated against and retaliated and awarded $663,983.

This blog is not legal advise, which can only be given by an attorney licensed in your state and familiar with the facts of your case.