There has been some confusion among federal and state courts in California as to whether an employee who has been the victim of whistleblower retaliation by their employer (under Cal. Labor Code s. 1102.5) must first file a complaint with the Labor Commissioner (under Cal. Labor Code s. 98.7) before they can proceed with filing a lawsuit in court. This is important because it potentially creates yet another hurdle for an employee seeking justice.
Federal Judge Oliver Wanger (US District Court for the Eastern District of California) has issued two decisions which said that employees must file a complaint with the Labor Commissioner: Neveu v City of Fresno 392 F.Supp.2d 1159, 1179-1180; and Fenters v Yosemite Chevron 2006 WL 2016536, *21-23. Judge Wanger’s colleague in the Eastern District, Judge Morrison England, disagreed: “To the extent that Neveu interprets Campbell as requiring that remedies before the Labor Commissioner must necessarily be exhausted as a prerequisite to suit under s. 1102.5, this Court disagrees.” Paterson v Cal. Dept. of General Services 2007 U.S. Dist. LEXIS 25957, *22 fn. 5.
Now a division of the California Department of Industrial Relations — the Division of Labor Standards Enforcement — has weighed in on this issue. In a July 2, 2007 opinion letter the DLSE said: “The DLSE’s position is that the wiser course is not to require exhaustion of Labor Code section 98.7 procedures prior to raising a statutory claim in a civil action.”
Here is a link to the DLSE opinion letter in pdf format (right click the link and choose save): DLSE Opinion Lttr re 1102.5 exhaustion
Where do I stand on this? Let’s just say, I think the DLSE is eminently wise and fair. Let’s just see if the courts are willing to listen to reason.