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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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

Time period to file suit if sexually harrassed by Supervisor

Ashley Ellis was a security guard for US Security Associates. She was sexually harassed by her supervisor in August of 2010, according to her lawsuit allegations. She complained and the supervisor received some counseling but the harassment did not stop. While she was promoted twice, she did not get a promised pay raise and so Ashley resigned in January of 2011.

What makes this sexual harassment case interesting from ¬†Danz standpoint is that the company had required her to sign an application for employment which reduced the time she had to file a lawsuit to six months from the date of the incident (or “employment action” as this agreement stated). The court dismissed her lawsuit without a written opinion, finding that the six month rule was broken by her.

Fortunately, the Court of Appeals reversed this decision. It found that, while statutes of limitation (the time in which you may file your lawsuit) may be shortened by agreement of the parties, here, shortening the time period would effectively cut off the right of the Department of Fair Employment and Housing from any meaningful participation in the process. Numerous authorities have opined that shortening the statute of limitations for FEHA (Fair Employment and Housing claims) is illegal. This is also set forth in the Government Code at 12920 as indicating FEHA is for the public good. Finally, the rule in the employment agreement stating the time runs for six months from the “employment action” would mean different time periods to sue for different FEHA claims. In fact, the FEHA laws require that a lawsuit be filed within one year of the receipt of a right to sue letter. Rules are substantially similar had Ashley filed with the EEOC, but the time period for that agency is 300 days from the last incident.

It is time for action in the California legislature to outlaw any rule or condition of arbitration requiring an employee to agree to file an administrative claim or lawsuit in a period shorter than that provided by statutes. To allow these conditions to remain in an arbitration agreement, an employee who did not know that it was illegal, but who believed he or she had actually “missed” the company’s time period, would probably not look for an attorney to advise them to file a lawsuit or arbitration agreement. There is virtually no reason grounded in public policy to allow shortened statutes of limitation. Some we have to live with, such as very short time periods to file union grievances (eg, ten days). But beyond that, let’s close the door now on such employer one-sided tricks to tip the scales in their favor.

Be sure to mark your calendar  with all relevant statutes of limitation in your case. The basic ones are one year from the last date of discrimination to file a claim with the DFEH and two years to file in court for termination in violation of public policy, intentional infliction of emotional distress and other common law claims. Government employees have other hoops to jump through. We represent both public and private employees through our ten state-wide offices. Call anytime to chat about your case! Steve Danz 877 789 9707