California Public Employees may not sue for public policy tort termination

Working for a public entity, as do many of our potential employment clients, raises a number of procedural issues. Today we will focus on just one, the limit on the right of California public entity employees to sue for termination in violation of public policy.

This cause of action is not available to employees of public entities, whether city or state or other local entity. Mikowsky vs. Regents of the University of California. This cause of action is normally brought against private employers when our client’s employment has been ended due to complaints about discrimination, whistle blowing, or (rarely) breach of an employment contract. A public employee may sue for just about everything else (such as discrimination based on age, sex, race, national origin, physical or mental condition, failure to dialog, accommodate or otherwise assist an employee who could do the essential elements of their job with such an accommodation.

In common law causes of action that are allowed against public entities, compliance with the Government Tort Claims Statute is required (see California Government Code 911). There can be very short time limits (six months, with possible extension for six more months, so if you have a case involving more than statutory time limits, get that claim filed quickly!

In all cases where employees allege a violation of the anti-discrimination laws of California arising from employment, it is necessary to file a claim with either the California Department of Fair Employment and Housing or the Equal Employment Opportunity Commission. This claim must be filed within one year of the last act of like-kind discrimination. You may chose to have the DFEH or EEOC investigate your charges or have your file closed and be issued a “right to sue” letter. Both steps have consequences beyond the scope of today’s blog, and we’ll cover some recommendations for which step makes the most sense in particular cases. In one case we recently reviewed, our potential client had decided (before we met) to let the DFEH investigate the charges, only to find the agency did not find discrimination. If a lawsuit had been filed following this finding of “no cause”, a judge may well have concluded that our client had taken his “one bite of the apple” and was not entitled to a jury trial.

In a new development, the case of Ruby Cornejo vs. Will Lightbourne, the California Court of Appeals at 2013 DJDAR 14058 has ruled that a lawsuit filed by a public employee under the California Whistleblower Protection Act (WPA), Gov’ Code Section 8547, does not require the exhaustion of administrative requirements with the Government Claims Act. This is because the whistle blower section has “free standing” investigative procedure which does not need to be duplicated by a tort claim. This will be subject to a separate blog.

We are quite fortunate to have an expert in California public employment law, Sam Wells, join us and we look forward to assisting all California public employees with work-related legal issues. In many cases, it will still be necessary for public employees to work with their unions, but in cases involving discrimination under California’s Government Code, we are here to help. Consultations are always free.

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.

-Steve