Just a few days ago, a California Court of Appeals held that a claim for unpaid wages was timely filed even though the time period, or statute of limitations, had been exceeded. Bain v. Tax Reducers, Inc. (Santa Clara County No. CV112065, 8/28/13). What possible combination of circumstances could result in a California wage and hour case to be filed late and still be “timely”?
The court determined that Mr. Bain’s claims for statutory wages due under California Labor Code 202,203 and 1194 (failure to pay minimum wage) was not time-barred since he had been pursuing a claim at the administrative level, namely with the Department of Labor Standards Enforcement (DLSE). In reviewing many prior decisions, the court observed that when an injured person has several legal remedies and reasonably and in good faith, pursues one, then the plaintiff could seek judicial relief by filing an ordinary civil action (which he ultimately did) against the employer for losses caused by contract breach. Alternatively, he could seek administrative relief with the Labor commissioner. Citing Reynolds ve. Bement, 36 C4th 1075, 1084-85).
In summarizing three prior court decisions, this court held that equitable tolling applies when an injured employee has several formal legal remedies and reasonably and in food faith pursues one. Here, it was the defendant who appealed their loss at the Labor Commissioner level.
In reading many cases under equitable tolling, the courts seem to be giving the advantage to a plaintiff who files late due to no fault of his own. If the second, purportedly untimely lawsuit is filed as a result of strategy or gross neglect, then the ploy is likely to fail. Such was the fate of an attorney who dismissed a lawsuit because he had conflicting court dates (he hadn’t bothered to notify opposing counsel or the court of this conflict) and then re-filed the one whose court date he chose not to attend. The court treated this harshly and said that this intentional disregard of rules would not allow for equitable tolling. In short, there was nothing equitable about gaming the system.
The Bain court went on to note that in other cases involving workman’s compensation, it was acceptable to toll a wrongful termination claim by proceeding in that forum.Even when a claim is not required to be filed with an administrative agency, if it is filed, then the claim may extend the statute of limitations.
California employees should consider carefully whether to file an alternative claim prior to filing in court if it will inevitably or likely delay the filing of a court case. While equitable tolling appears to be well-established in California wage and hour law as allowing late filings, there is no reason to “chance it” if, for example, you can file a court case as well as an administrative proceeding. In many cases, it’s actually required that the administrative action be filed first. This is called exhaustion of administrative remedies (for example, in filing for a violation of termination in retaliation for complaining about unsafe working conditions), and will be the subject of a further blog.
Gentle readers, please also remember that the courts are now insisting that certain “administrative” procedures be followed when claims are made under the California Labor Code. An administrative claim (in the form of a letter to the Department of Labor Standards Enforcement, or DLSE) must be filed before a claim as a whistle blower can be made under LC 1102.5. This report is allegedly required (says the court) by LC 98.6. So seek expert legal advise on whether your particular claim requires an administrative remedy or not. The time period to file the administrative claim is only 6 months!
Public employees may have additional hurdles to overcome, such as the timely filing of a Government Tort Claim. Generally, this is to protect collateral rights such as breach of contract or intentional infliction of emotional distress. A governmental agency is primarily liable in our employment cases for violation of Government Code statutes based on age, sex, race and the like.