Suing Your Employer: Procedural Considerations
Author: New York Employment Discrimination Attorney Alena Shautsova
When an employee would like to commence an action against former or current employer for various violations of the employee’s rights, it is important to know that sometimes an employee has to comply with established by law process.
An employer and its supervisors and employees may be sued under different laws for various causes of action under Federal, State, City and common law provisions. Certain provisions require that prior to commencing a lawsuit an employee starts an administrative process by filing a complaint with the EEOC and obtaining a right to sue letter. Some provisions state that an employee would like to bring an action against New York City or its agencies, an employee in certain situations has to give NYC a notice by filing a notice of claim… Without complying with these important requirements, an employee may lose his/her right to be heard in court.
The best way to find out if one needs to comply with the administrative requirements is to consult with an attorney. The other good way would be to do research. Depending on causes of action (and it is often the hardest part of the lawsuit: to determine what law channels should be used to describe the wrong an employer committed against an employee) and an employer, potential plaintiff should look up the administrative filing requirements. For example, if in addition to discrimination causes of action, an employee would like to sue City of New York for a tort (international infliction of emotional distress, for example), an employee should give city a notice according to the following rules >>. In each case of lawsuit for violations of Titlve VII, an employee must obtain a Right to Sue letter from the EEOC...
However, sometimes, an employee does not need to warn an employer about the lawsuit. This is true for causes of action under Section 1981: discrimination on the basis of race. In this situation, an employee does not need to follow any administrative compliance process before commencing an action in Federal court.
Finally, the Notice of claim or administrative filing with the EEOC has its own deadlines: 90 days of the notice of claim, and 300 days for the EEOC filing. It means that the events that happened 91 days from the date of filing, or 301 days of filing, will not be considered in most cases, and an employee will not be able to recover for violations happened, unless late filing is found excusable.