You might be tired of “Exhaustion of Administrative Remedies,” but don’t sleep on it!

Many employees may be unsure what to do if they discover they have been treated unlawfully by their employer.  Going straight into a lawsuit can be a scary step, and is not always the right one.  If you thought “there must be some government agency that can investigate and fix what happened,” often you would be right.  However, that is not always the case, and sometimes the existence of that agency can complicate things.  This article gives a basic overview of the “exhaustion of administrative remedies,” so that if you find yourself in that situation, you might know to avoid some pitfalls in the law and take advantage of opportunities to right how you were wronged.  

Not all employment laws are created equal.  Some, like the laws that prohibit things like sex, race, or age discrimination, are “administered” by agencies like the Equal Employment Opportunity Commission or the Texas Workforce Commission—Civil Rights Division (for equivalent Texas laws).  That means that you can file a complaint with those agencies to be investigated and (ideally) resolved before any lawsuit needs to be filed.  Similarly, the Occupational Safety and Health Administration administers OSH Act retaliation claims, the Department of Labor administers unpaid overtime claims, and the National Labor Relations Board administers claims (like for anti-union activities) under the National Labor Relations Act.  There are lots of agencies like those.    

For some types of legal claims, like unpaid overtime, you can decide to go the agency or just file a lawsuit.  For other laws, like the Family and Medical Leave Act, there is not an agency to go to at all, and your main recourse is to just file a lawsuit.  Still other laws, like the OSH Act or the NLRA, make it so you can only bring a complaint with the government, and generally do not have any right to file a suit at all.           

But for laws like Title VII of the Civil Rights Act of 1964, the Texas Commission on Human Rights Act, or the Americans with Disabilities Act, you are required to go through an investigation by the government before you can file suit.  That is known as “exhaustion of administrative remedies.”  Specifically, you may be required to go through a process with the agency before you take legal action on your own.  The upshot is that if you employer violates one those laws, you can only file a lawsuit after the government gives you permission—the EEOC for federal court, TWC for state court.  This often takes the form of a “Notice of Right to Sue.”  Alternatively, the agency may decide to sue your employer directly.      

Administrative exhaustion can be controversial because it is based, at least in part, on the idea that an employee should not be allowed to “sleep on their rights.”  Some view it as an intentional obstacle to employees and a favor to employers so that they are not sued “too much.”  Depending on the agency or law in question (and factors like the priorities of the current presidential administration) having the government investigate what happened can be extremely helpful.  It can force your employer has to address what it did and solve problems quickly.  

On the other hand, the requirement to exhaust your administrative remedies can sometimes make it much harder to enforce your rights.  You may have a very quick deadline (as little as a month in some cases) to start the administrative process or else you will totally lose your ability to protect your rights.  Some agencies are much less efficient or diligent than others.  And critically, if you mess up the process, that may prevent you from being able to vindicate your rights in a later lawsuit. 

Administrative exhaustion can seem very technical—even petty—and can vary a lot based on what agency you are under.  For example, say you believe your employer fired you because of your race, and you file a charge with the EEOC.  You cooperate with the EEOC’s investigation.  The EEOC decides to issue a Notice of Right to Sue rather than pursuing your case itself.  Then, you find out that what really happened is that you were fired because of your national origin.  If you later filed a national origin discrimination lawsuit, your employer might try to get it dismissed simply because you failed to exhaust your administrative remedies for that particular claim.  Then, you would have to show that your lawsuit was “like or related” to the race claim investigated by the EEOC.  That may give your employer an easy out.     

If you believe your employer has violated the law and are not sure if or where you should report that, you should consult with employment attorneys like Rob Wiley, P.C. 

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