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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

*At this time, we are only conducting phone consultations, please no walk-ins.

Should you make a federal case out of your employment termination?

In most California wrongful termination and discrimination cases, we search for legal and legitimate reasons to keep your case in state court. The reasons for that are numerous but generally state court judges are less inclined to dismiss the case on summary judgement than federal courts and juries can find for a plaintiff with less than all 12 jurors voting in favor of the plaintiff. That said, lets today review the rules of when you or your attorney may chose one jurisdiction over the other.

If your case involves an employer whose headquarters and/or your place of employment are in California, and you are a California resident, AND the causes of action are contract or tort, then you must file in state court. However, in some cases such as ERISA or Section 301 of the NLRB Act are alleged (union activity), then federal court is your only option. We have litigated numerous transportation cases in federal court under the National Railway Act.

Your attorney earns really big bucks for making the right call on your behalf when the case may be filed in either state or federal court. The right to go to federal court exists when the amount in controversy exceeds $75,000 and involves a federal question. This would include, for example, discrimination claims under title VII of the Civil Rights Act. If your claim involves a federal cause of action, whether Title VII, ADA, ADEA or other federal civil rights statutes, then the law that is applied will be the federal substantive law, even if the case is heard in state court.

Statutes of limitation (the time period in which you must bring your claim) in state courts are all determined by state statutes of limitation. In California, eg, for a wrongful termination or personal injury action, the time period is two years. Code of Civil Procedure 335. However, many federal statutes do not contain a time period in which to sue. In order to determine if your claim is timely under the federal statute (and putting aside for now whether you have timely filed your administrative claim and received a “right to sue” letter). So, how do we determine if your federal claim is timely filed? ¬†First, we need to look at whether the claim arose before or after 12/2/90. If before, and the statute does not contain a federal time limit, the federal court will look to the more analogous state time period. If your cause of action arose after 12/2/90 (most likely unless you’ve been in hibernation for two decades) then there is no such “borrowing” and a blanket four year statute applies. 28 United States Code Section 1658.

We practice employment law representing plaintiffs only throughout California. We represent plaintiffs in class actions, wrongful termination, harassment, sexual harassment and retaliation and related causes of action. As always, this blog should not be considered legal advise, which can only be given by an attorney licensed in your jurisdiction and familiar with the facts of your case. Steve Danz