Employment Claims Against Your Government Employer

Public positions are coveted among the population because public employees notoriously have generous benefits packages, are often protected by a union, and terminations in these cases often go to government oversight boards to prevent wrongful terminations. They are seen as a safe space for employment and most public employees tend to be proud of their positions - as they should be. However, as great as these positions can be, the fact remains that poor management, supervisors and other bad actors can still cause you harm in the form of injuries (personal and mental), unpaid wages, refusal to allow mandatory breaks, discrimination, harassment, failure to accommodate your disabilities, retaliation, breaches of contract and a host of other issues. Just because they are a government employer does not mean they are perfect and certainly does not mean you cannot bring your claim for justice against them. 

Government Codes sections 810-966.6, known as the California Tort Claims Act, applies to public entities which includes the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State.  In California, there are requirements that must be met before you can bring a claim against a public entity for personal injury or breach of contract for money or damages that will be described below under "Procedural requirements".

I am Unsure if my Employer is a Public Entity

If you are unsure whether your employer is a public entity, you can search the roster of public agencies by calling the Secretary of State's Special Filings Department at (916) 653-3984; contact your employer and ask them if they are a public entity; or review the business entity status filed with the secretary of state or county clerk where the employer will be identified as a s a "public entity". If your Employer attempts to mislead, prevent, or dissuade your claim regarding their public entity status, the employer may be estopped from arguing that your claim came late as it relates to the procedures necessary to file a claim against a public entity described below. Most often, it is obvious that your employer is a public entity. A public school, state university, the police or fire departments, state departments or postal services are public entities. Sometimes, it is not as obvious such as a charter school, which a private entity which receives public funds to operate and advertises itself as a private entity. These schools can be considered public entities and you would still need to go through the procedural requirements below. 

What Claims Are Covered by the Torts Claims Act? Which Are Not?

The California Tort Claims Act covers all civil liability claims for "money or damages," with many exceptions and exemptions. To start, all physical injuries and any other type of personal injury is covered, meaning you must go through this particular procedural requirement to bring a timely claim. Intentional torts, such as a wrongful act against another person or property; breaches of contract; damages to your real or personal property; statutory actions; class actions; indemnification actions and other intentional torts are covered by these requirements. 

Under California law there are several exceptions including but not limited to:

• Claims for Salary, expenses, pension benefits, workers' compensation, and employment compensation;
• claims by public entities;
• Actions for relief, other than for money or damages such as for hiring;
• recovery of public property seized by a public entity or damages in lieu of that property;
• claims brought by minors related to sexual abuse;
• Fair Employment and Housing Claims such as Discrimination, Harassment, and Retaliation.

For Discrimination, Harassment, and Retaliation claims, there is a separate procedural requirement that you file your complaint with the Department of Fair Employment and Housing before bringing a Civil Suit. 

Procedural Requirement

Any claim against a public entity for personal injury, death, or for damages to personal property must be presented to the public entity within six months of the "accrual of the cause of action," or when the adverse action (the injury or breach) occurred. This accrual is the date in which the statute of limitations will begin to run; or the amount of time you have to sue before you give up that right. The Public Entity will generally have 45 days to accept or reject your claim. If the entity does not respond within this period, it is deemed rejected and you have six months from this date to file your claim. 

If your Public Employer has a specific form they require for tort claims, you must use it. Some entities, like Police Departments or Schools and Universities have a tort-claim form that you can access by calling their district office and requesting it. In some cases these forms are available on their website or in your employee portal. 

If no form is available, you must submit a typed claim including all of the requirements of Government Code section 910 which include: (a) the name and post office address of the claimant; (b) the post office address to which the person presenting the claim desires notices to be sent; (c) the date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted; (d) a general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim; (e) the name or names of the public employee or employees causing the injury, damage, or loss, if known; (f) the amount claimed if it totals less than ten thousand dollars as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed.

Your claim must include a section titled "Compliance with Government Tort Claims Act" which states the date your claim was filed and the date of the rejection. 

It doesn't end here. Your must also follow the delivery requirements to meet this procedural standard, which is not a difficult task but can be confusing. You must Deliver your claim to the clerk, secretary or auditor or mail it to the same or its governing body at its principal office. There is an exception if these officers do in fact receive your claim by any other means. 

My Claim is Late

If you claim is late, this does not necessarily defeat your chances for justice. If it was filed after six months of the incident but before one year, you may still file your claim and seek relief (really provide a legitimate excuse) from the late filing. The claimant has up to one year after accrual of the cause of action to apply in writing to the public entity for permission to file a late claim. The application must state the reason for the delay and be accompanied by a copy of the proposed claim. 

If your public employer has failed to register themselves as a public entity with the secretary of state; purposely mislead, prevented or dissuaded you from filing a claim; or made payments in the past to you regarding your injury or breach of contract without notifying you of the claims requirement, your late filing will likely be excused. 

If the public entity denies the application for permission to file a late claim, the plaintiff may file a civil petition for relief from the claims presentation requirements of Section 945.4. (Gov. Code, § 946.6.) The petition must be filed within six months after the application is denied or deemed to be denied. (Gov. Code, § 946.6(b).) The petition must show: (1) that an application was made to the public entity under Section 911.4 and was denied or deemed denied; (2) the reason for failure to timely present the claim to the public entity within the time limit specified in Section 911.2; and (3) the information required by Section 910. (Gov. Code, § 946.6(b).) California Government Code section 946.6(c) provides that the court will grant relief only if it finds that (1) the application to the public entity for leave to file a late claim was made within a reasonable time not to exceed one year after accrual of the claim as specified in Section 911.4(b), (2) was denied or deemed denied by the public agency pursuant to Section 911.6, and (3) one or more of the following is applicable: (a) the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect, unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of Section 945.4; (b) the person who sustained the alleged injury, damage or loss was a minor during all of the time specified in Section 911.2 for the presentation of the claim; (c) the person who sustained the alleged injury, damage or loss was physically or mentally incapacitated during all of the time specified in Section 911.2 for the presentation of the claim and by reason of that disability failed to present a claim during that time; or (d) the person who sustained the alleged injury, damage or loss died before the expiration of the time specified in Section 911.2 for the presentation of the claim.

Union Employees

Many State and County Government employees are unionized. Unionized employees are typically subject to a grievance procedure within their Collective Bargaining Agreement which includes an appeal to a State Personnel Board, Arbitration or some other process that was agreed to between the Union and the public employer. The courts have held that state employees are not required to go through internal grievance procedures before filing with the DFEH and pursuing civil remedies. However, if they do pursue the grievance process, they have then elected to subject themselves to it. Not only must they finish this process to achieve any remedy, but an adverse finding in the process can be used to collaterally estop later claims, including FEHA and other statutory claims, unless they challenge that adverse finding in an administrative mandamus appeal to the Superior Court. (Schifando v. City of Los Angeles (2000) 31 Cal.4th 1074, 1090, citing Johnson v. City of Loma Linda (2000) 24 Cal.4th 61.).

Just because you are a Union Employee, does not mean you will not get your day in Court against your public entity employer.

If you are a public employee, whether unionized or not, you still have the right to bring your claim against your public employer but you must do so as soon as possible as you may soon lose that right and ability. The Attorneys at Miller Wilmers APC, based in Los Angeles California have the experience dealing with public entities to help bring justice to you and your family.