Pre-2013 version of Labor Code sections 98.7 and 6312 did not require exhaustion of administrative remedies

In 2013, the Labor Code was amended to explicitly state that exhaustion of administrative remedies is not required before filing suit under section 98.7. However, even before this amendment, sections 98.7 and 6312 did not require exhaustion. Pre-amendment, the plaintiff in this case filed a retaliation suit against her former employer pursuant to section 6310. The employer demurred, arguing that the plaintiff failed to exhaust her administrative remedies by filing a claim with the Labor Commissioner under sections 98.7 and 6312. The trial court sustained the demurrer. The Second Appellate District reversed and remanded, holding that the plain language of the statutes before they were amended did not require exhaustion of administrative remedies. The court found that the use of the permissive “may” rather than the mandatory “shall” in these sections “establish[ed] an administrative claim is permitted, but not required.” [Sheridan v. Touchstone Television Productions, LLC, (Cal. Ct. App. 2015) 14 C.D.O.S. 11475]

Categories: Legal Developments