Several months ago the California Department of Fair Employment and Housing (DFEH) updated its website to allow employees to make an online appointment to lodge a complaint of employment discrimination or harassment. Now the DFEH allows employees to obtain immediate right-to-sue notices online. The website (www.dfeh.ca.gov) instructs that “Persons represented by counsel, who wish to proceed directly to court on employment discrimination, harassment, and retaliation complaints, can now request a right-to-sue letter online.”
Employees filing a claim of discrimination with the DFEH can choose to forgo an investigation and ask for an immediate right-to-sue. The right-to-sue is the employee’s “ticket” to sue the employer in court. By choosing the immediate right-to-sue route, the DFEH will not investigate the claim, and the employee can immediately sue the employer in court. If during the initial interview the DFEH determines a case has no merit, it will allow the employee to request an immediate right-to-sue. The DFEH website repeatedly warns the employee that obtaining an immediate right-to-sue should only be done after consulting with an attorney.
The new “online” route to obtaining an immediate right-to-sue notice can streamline cases where an attorney wants to file a lawsuit. It may also lead to an increased number of discrimination or harassment lawsuits because the employee can obtain the right-to-sue from the comfort of their own home.
It will be interesting to find out if the number of discrimination and/or harassment lawsuits increase as a result of the new online procedure.
You can download an audio version of this article here: California Employment Lawyer Netcast for June 27, 2008.
Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341Original article by Robert E. Nuddleman of Phillip J. Griego & Associates
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Where is the statutory authority for the DFEH to issue immediate right-to-sue letters? Am I right in concluding that there is no express authority? The DFEH says in its Enforcement Division Directive that “it is the Department’s position that restricted staff resources make it impossible to complete a full investigation and determine whether to issue an accusation within 150 days.”
Thus, it sounds to me like the DFEH just decided it had the authority to bypass the investigation and simply issue a right-to-sue letter because if the plaintiff waited the whole year the DFEH would still have to issue the letter. Is this your understanding too?
Government Code Section 12965 says that if an accusation is not issued within 150 days after the filing of a complaint, or “if the department earlier determines that no accusation will issue,” the department must must notify the complainant “that the department shall issue, on his or her request, the right-to-sue notice.” If the complainant does not request a right-to-sue notice the department must issue the notice “upon completion of its investigation, and not later than one year after the filing of the complaint.”
If a complainant asks for an immediate right-to-sue the DFEH knows it will not issue an accusation. Therefore the DFEH can issue a right-to-sue notice immediately upon the complainant’s request.
There are several cases that say the scope of the investigation is within the discretion of the DFEH. The DFEH has long interpreted these decisions and their ability to issue a right-to-sue notice upon request as giving them the right to issue the notice even if no investigation is conducted. See, e.g. http://www.dfeh.ca.gov/DFEH/Publications/directives/DFEH-Directive234.pdf