In California, the statute of limitations for wrongful termination depends on the reason why the discharge was unlawful. You generally have 2 or 3 years to bring a claim under state law. But an EEOC claim must be filed within 180 days of the termination in order to be considered timely.
Some federal wrongful termination laws use a longer statute of limitations. However, many laws require discharged workers to file an administrative complaint first, before bringing a lawsuit.
What is the statute of limitations for wrongful termination in California?
For wrongful termination claims in California, the applicable statute of limitations will depend on why the discharge was unlawful.
Some of the most common situations are when the termination:
- breached an implied contract of continued employment,
- violated public policy,
- was in retaliation for exercising rights under California’s Fair Employment and Housing Act (FEHA),
- was done pursuant to a mass layoff and violated the California Worker Adjustment and Retraining Notification (WARN) Act, or
- violated state law or the federal Sarbanes-Oxley Act by retaliating against whistleblowing activities.
Depending on which of these circumstances is at issue, the statute of limitations can be between 2 and 4 years. An employment lawyer or a wrongful termination lawyer from a reputable law firm can help you understand the amount of time you have to file your particular civil action.
Breach of implied contract – 2 years
Workers in California who do not have an employment contract, but who have been fired in violation of an implied contract not to terminate except for good cause, have 2 years from the date of the termination to file a lawsuit.1 This statute of limitations applies to
- breach of contracts and oral contracts,
- including non-written employment contracts.
These lawsuits are quite rare. Most California workers have a contract and are considered at-will employees.
Violation of public policy – 2 years
A lawsuit for wrongful termination in violation of public policy can be brought within 2 years of the date of the termination.2 Terminations violate public policy if the employee is fired for:
- refusing to break the law,
- performing a legal obligation,
- exercising a legal privilege or right, or
- reporting a potential violation of an important law.3
California wrongful termination law gives workers a cause of action in these situations, even if their employment state is explicitly at-will employment.
FEHA retaliation – 3 years
Employers who retaliate against a worker by firing him or her because they invoked or exercised a right under FEHA commit a wrongful termination. Aggrieved workers have 3 years from the date of the termination to file an administrative complaint with the California Department of Fair Employment and Housing (DFEH).4 Once they receive a notice of right to sue letter from the DFEH, they have 1 more year to file a wrongful termination lawsuit against their employer.5
FEHA retaliation terminations are similar to those that violate public policy. They include terminations that took place because the employee:
- opposed or filed a complaint about workplace harassment or sexual harassment,
- initiated a claim under an employment discrimination law on the basis of:
- sexual orientation,
- national origin,
- race, or
- any other protected trait;
- challenged the employer’s refusal to grant leave under an applicable pregnancy, family, or medical leave act,
- testified or assisted in a FEHA proceeding, or
- requested a workplace accommodation for his or her disability or religious belief.6
Violation of WARN Act – 3 years
Terminations that are wrongful because they violate California’s WARN Act come with a 3-year statute of limitations.7 The WARN Act requires covered employers to give employees at least 60 days of notice before a:
- mass layoff,
- plant closure, or
- major relocation.8
Employers are covered by the WARN Act if they have employed at least 75 employees in the last 12 months.9
Whistleblower retaliation and Sarbanes-Oxley Act – 3 years
Termination can also be wrongful if it was done to retaliate against a worker for blowing the whistle on wrongdoing in the workplace. In California, these are generally covered by California Labor Code section 1102.5 LAB. Claims made under this statute have to be filed within 3 years.10 This state law can cover terminations for:
- reporting wage and hour law violations to the Labor Commissioner,
- bringing evidence of the employer’s suspected criminal activity to a law enforcement or government agency, or
- making an allegation of suspected wrongdoing internally to a supervisor or to someone else with the authority to investigate.
Workers who blow the whistle on suspected securities fraud by their employer also have protections under the Sarbanes-Oxley Act. Workers who have been wrongfully terminated under this Act have to file an administrative complaint within 180 days.
The Department of Labor then has 180 days to act on the complaint. If they do not, aggrieved workers can file a lawsuit against their employer. This lawsuit has to be filed within 4 years of the date of termination.11
What is a statute of limitations?
The statute of limitations is the time period during which someone can file a lawsuit. It generally begins to run when the victim of someone else’s wrongful conduct
- has been hurt in some way, or
- has discovered that they have been hurt.
When the statute of limitations has expired, the victim can no longer invoke their legal rights. If they try to sue after the time limit has run, the defendant can have the case dismissed quickly.
Statutes of limitations serve several purposes, including:
- pushing victims to invoke their rights quickly,
- allowing defendants to repose once a sufficient period of time has passed, and
- ensuring that evidence and memories of the incident are fresh for the case.
What is wrongful termination?
Wrongful termination happens when an employer fires, discharges, or lays off a worker for an illegal reason.
Under California law, the most common illegal reasons for terminating a worker include:
- discrimination, and
- violation of public policy.
Wrongful terminations can also be constructive terminations. Constructive dismissal happens when the worker quits because his or her employer has made the working conditions so bad that a reasonable person would see that they have no alternative but to resign.
Why do some laws require an administrative process before I can sue?
Some employment laws, particularly federal laws, require aggrieved workers to file an administrative complaint first, often with the Equal Employment Opportunity Commission (EEOC).
This additional process is meant to resolve the case outside of the courtroom. It generally involves mediation or arbitration. This reduces the costs of bringing and defending against the claim. It also conserves the limited resources of the judicial system.
Only if the administrative process does not resolve the dispute can the worker file a wrongful termination case in court.
- California Code of Civil Procedure 339 CCP.
- California Code of Civil Procedure 335.1 CCP.
- Turner v. Anheuser-Busch, 7 Cal.4th 1238 (1994).
- California Government Code 12960 GOV.
- California Government Code 12965 GOV.
- California Government Code 12940 GOV.
- California Code of Civil Procedure 338(a) CCP.
- California Labor Code 1401 LAB.
- California Labor Code 1400 LAB.
- Minor v. Fedex Office & Print Services, Inc., 182 F.Supp.3d 966 (N.D. Cal. 2016).
- 28 USC 1658(a).