This post was authored by Erin Kunze.
In 2009, Santa Barbara County, like many public agencies in California, faced a budget shortfall for the 2009-2010 fiscal year. In response, the County determined the need to lay off 35 employees, including employee Shawn Terris. Terris endeavored to exercise bumping rights, but it was determined that she did not possess the special skills needed to exercise bumping. Terris, who was then laid off, filed a complaint with the County’s Civil Service Commission. She alleged the termination violated her seniority rights, and that it was discriminatory based on her exercising rights as a County employee, on her exercising her rights as an elected County Employees’ Retirement Board Trustee, and on her filing a claim against a public entity.
The Civil Service Commission ruled that it could make a determination about Terris’ bumping rights and whether proper procedures for terminating her employment were followed. However, it determined that it could not rule on Terris’ discrimination claims because she had not yet exhausted her agency-provided administrative remedy by first filing a discrimination complaint with the County’s Equal Opportunity Office (EEO). The Commission advised Terris and her attorney that she must first file with the EEO to have her discrimination complaint heard. The Commission offered to continue her hearing so that she could first proceed through the internal EEO process and so that the Commission could hear all claims at once. Terris chose not to file the EEO complaint. When her claim was rejected, Terris sued the County, asserting that she was not obligated to exhaust her employer’s internal administrative remedies prior to bringing her claim forward, based on a federal trial court holding that interpreted California Labor Code section 244, subdivision (a) to mean that internal policies requiring the exhaustion of administrative remedies are contrary to state labor law.
In a decision last month, Terris v. County of Santa Barbara, the Court of Appeal for the Second District of California determined that the federal trial court got it wrong, noting that the decision was a clear contradiction to controlling State Supreme Court precedent. Specifically, the Court of Appeal held that Labor Code section 244 – providing that an individual is not required to exhaust administrative remedies in order to bring a civil action against his or her employer – applies only to administrative remedies provided by the State Labor Commissioner. Therefore, the Terris court held, the statute does not impact a public employee’s duty to exhaust administrative remedies available through his/her employer before filing a civil lawsuit.
In text, Labor Code section 244, subdivision (a), states that an individual is “not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this [the labor] code, unless that section under which the action is brought expressly requires the exhaustion of an administrative remedy…” While the statutory language may appear clear on its face, the Terris court explained the legislative history indicating that the “administrative remedies” described by the section 244, are specific to remedies provided by the Labor Commissioner, not the remedies available through a public employer’s internal procedure.
Prior to the enactment of Labor Code section 244, subdivision (a), the California Supreme Court, in the 2005 case Campbell v. Regents of University of California, held that public employees must pursue appropriate internal administrative remedies before filing a civil action against their employer. Following Campbell, California courts began to rely on the decision for diverging principles: (1) that an employee had to exhaust only internal administrative remedies before filing a civil suit, and (2) that an employee had first bring a claim before the Labor Commissioner before filing such suit. Later, in 2013, after this controversy developed (see our related article here*), the State Legislature passed Senate Bill No. 666, enacting Labor Code section 244, subdivision (a), and amending Labor Code section 98.7 (involving Labor Commissioner claims) in an effort to resolve the divergent interpretations arising from Campbell. While the statutory language is broad, the Terris Court looked to commentary by Senate Bill No. 666’s author. In his commentary, the author explained that Labor Code section 244, subdivision (a) was enacted to protect the rights of employees to sue without first having to exhaust Labor Commissioner administrative proceedings (e.g. wage theft and retaliation claims). Accordingly, the Terris court determined that the holding in Campbell remains intact. Thus, public employees, including Terris, must pursue “appropriate internal administrative remedies,” such as internal grievance procedures or an EEO complaint process provided by a public agency employer, prior to filing a civil lawsuit regarding the same action.
This case emphases the importance of internal public agency grievance and complaint procedures, which may assist your agency in preventing unnecessary civil litigation – begging the question, does your agency maintain internal grievance and complaint procedures? If so, are your agency’s grievance policies and procedures clear and concise? Does your discrimination, harassment, and retaliation prevention policy include a complaint process? If not, there’s no time like the present to submit your policies for a check-up. See the Liebert Library and Model Personnel Policy Portal for additional tools for your agency: https://liebertlibrary.com/.
*Note: The Court’s decision is consistent with LCW’s interpretation of the law following the 2013 controversy. See https://www.lcwlegal.com/news/plaintiff-was-not-required-to-file-complaint-with-labor-commissioner-before-filing-suit-for-whistleblower-retaliation-under-labor-code-section-11025