A “statute of limitation” is the time within which a lawsuit or claim must be filed. “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” California Code of Civil Procedure Section 312. While there may be instances wherein the statute of limitations is tolled, missing a statute of limitations can have dire consequences. If a claim or lawsuit is not timely filed, the plaintiff may be barred from pursuing his or her claims.
One reader asked for a list of common statutes of limitation in employment litigation. So, here goes my list (Beware – Statutes of Limitation may differ from state to state. The Statutes of Limitation listed below apply in California):
Discrimination/Harassment/Retaliation under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) – Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation. Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court.
Discrimination/Harassment/Retaliation under Title VII, ADEA and ADA (age, race, sex, disability, national origin, etc.) – In California, claims must be initially filed with the Equal Employment Opportunity Commission within three hundred days (other jurisdictions it may be as little as one hundred-eighty days). Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court.
Breach of Contract – If the contract is written, the lawsuit must be filed within four years of when the
breach occurred. If the contract is oral or implied-in-fact, it must be filed within two years of the breach.
Unpaid Overtime, Minimum Wage, Meal and Rest Breaks – Claims must be filed with the Labor Commissioner or in court within three years of when the wages were earned. This means, if the employee has worked more than three years, the employee may lose a portion of the claims he or she could have brought earlier. In court, many plaintiff’s counsel include a cause of action under Business and Professions Code Section 17200 to extend the statute of limitations by an additional year. Effectively, this gives employees up to four years to file a wage claim in court (not with the Labor Commissioner, though).
Wage Claims Based on Breach of Contract – Must be filed within either four years or two years, depending on whether the contract is written or oral or implied-in-fact.
Vacation Pay – There is currently a split in authority as to when the statute of limitations on vacation pay claims begins to run. In Sequeira v. Rincon-Vitova Insectaries, Inc. (1995) 32 Cal.App.4th 632, the court held that the statute of limitations begins to run when the vacation pay is earned. Therefore an employee who had accrued 12 years of vacation pay under a written employment agreement could recover only the portion accrued during the 4 years preceding termination. Later, in Church v. Jamison (2000) 143 Cal.App.4th 1568, the court held that the statute of limitations does not begin to run until the employee is terminated because Labor Code Section 227.3 says, “all vested vacation shall be paid … as wages” to a terminated employee.
Waiting Time Penalties Under Labor Code Section 203 – A claim for just the penalty must be filed within one year of the termination. A claim seeking both the penalty and the underlying wage must be filed within the time frame to bring a suit based on the underlying wage. There is some discussion that recent interpretations regarding the statute of limitations for meal and rest breaks claims would extend the statute of limitations to three years even if the penalty alone is sought. To my knowledge this specific issue has not been address since Murphy v. Kenneth Cole.
Termination in Violation of Public Policy (aka Tameny Claim) – Claims must be filed in court within two years of the wrongful termination
California Government Tort Claims – Some claims against the State of California or other public agencies must be presented to the government agency in a particular format before filing the claim in court. Such claims usually must be presented to the government agency within six months.
Defamation (libel/slander) – Lawsuits must be filed within one year from when it was determined that the defamatory statements were made.
Fraud – The lawsuit must be filed within three years of when the aggrieved party discovers the facts constituting the fraud or mistake.
Family Medical Leave Act – Any action must be filed within 2 years after the violation, or within 3 years if the violation was willful.
California Equal Pay Act – Court actions for wage discrimination claims (i.e., the opposite sex is paid a higher wage based on gender) within two years for most actions, and three years if the violation was willful. While there is no administrative exhaustion requirement, claims may alternatively file a claim with the State Labor Commissioner within 6 months of the violation.Phillip J. Griego & Associates 95 South Market Street, Suite 520 San Jose, CA 95113 Tel. 408-293-6341
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