Suspect employee didn’t file on time? Raise that issue early in litigation process — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Suspect employee didn’t file on time? Raise that issue early in litigation process

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in Employment Law,Human Resources

Here’s a warning for employers facing litigation: Don’t wait to check whether the employee filed EEOC or other administrative claims on time. Raise the issue early.

In a recent decision, the Cali­for­nia Court of Appeal held that an employer that waited until a trial ended to raise an objection about exhausting administrative remedies had waived its right to object. The court held that the employer’s objection—that the employee failed to show that she had exhausted her administrative remedies under the Fair Employment and Housing Act (FEHA)—was untimely since a full trial on the merits of the case had already taken place.

Recent case: Ester worked for Konad USA Distribution as an account manager until she was fired, allegedly for complaining that the company’s CEO and sole shareholder had sexually harassed her. She sued for sexual harassment, hostile work environment, retaliation and wrongful termination in violation of public policy.

After a bench trial and judgment in Ester’s favor, Konad objected and—for the first time—raised the issue that the court lacked jurisdiction to decide the case because the employee had not proved that she had exhausted her remedies under FEHA.

The trial court rejected Konad’s argument and awarded Ester $60,000. Konad appealed.

The appellate court found that Konad “forfeited any right [it] may have had…for a judgment of dismissal,” by waiting until the trial ended to raise its objection. (Kim v. Konad USA Distribution, No. G048443, Court of Appeals of California, 4th District, 2014)

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