Exhausting Administrative Remedies Before Work Claim In California
In Leibert v. Transworld Systems, Inc. (1995) 32 Cal. App. 4th at page 1704, the Court of Appeal noted that Labor Code sections 1101, 1102 and 1102.1 are silent regarding administrative remedies.
It continued: "Section 98.7, a more recent addition to the Labor Code, provides: 'any person who believes that he or she has been discharged or otherwise discriminated against in violation of any provision of this code under the jurisdiction of the Labor Commissioner may file a complaint with the division Division of Labor Standards Enforcement. . . .' (Lab. Code, 98.7, subd. (a), italics added.) the section outlines a process of investigation and decision by the Labor Commissioner. . . Subdivision (f) states:
'The rights and remedies provided by this section do not preclude an employee from pursuing any other rights and remedies under any other provisions of law.' " (32 Cal. App. 4th at p. 1704.)
In Leibert, the court did not decide whether exhaustion of Labor Code administrative remedies was a precondition to the bringing of a direct statutory cause of action, as the plaintiff had misleadingly pled such exhaustion had occurred (even though it had not in fact been done). (Id. at p. 1698.)
The court instead based its decision that an aggrieved employee need not exhaust administrative remedies prior to bringing a nonstatutory claim (wrongful discharge in violation of public policy or intentional infliction of emotional distress) on the facts that the administrative remedies were nonexclusive and it would violate public policy to restrict the bringing of such nonstatutory claims only to those cases where some administrative remedies had been pursued. (Id. at pp. 1706-1707.)