Employees of larger employers are oftentimes provided the opportunity to submit an internal grievance, complaint, or to internally appeal administrative decisions related to the employee’s discipline, termination, or the employee’s complaints of discrimination, harassment, and retaliation. These internal complaint procedures mean that the complaint is resolved within the company or organization itself, rather than utilizing the courts. These procedures are especially common at public school districts and other governmental entities. This article discusses the potential consequences of filing an internal grievance, appeal, or complaint when the employee has a potential California Fair Employment and Housing Act (“FEHA”) or retaliation case.
In summary, an employee with potential retaliation or FEHA claim should first contact a plaintiff employment lawyer before beginning to pursue any type of internal remedy with the employer. While pursuing an internal or “administrative remedy” may ultimately be warranted, this should only be done after consulting with a lawyer specializing in employment law.
What are internal grievances, complaints, and appeals?
Internal grievances, complaints, and appeals are procedures that the employer, and not the state or court system, has established to resolve certain types of employment disputes. Legally, these procedures are called "internal remedies” or “administrative remedies”. These procedures are set forth in the employer’s policy and procedures manual, in the employee’s collective bargaining agreement (“CBA”), or the employer’s memorandum of understanding (“MOU”). These procedures typically consist of the ability for the employee to make a written complaint to a mid-level manager and, if the employee is not satisfied with the resolution, the ability to appeal to a CEO, Board of Directors, or Board of Trustees of higher rank. The employee is sometimes given the ability to present evidence in conjunction with the grievance or appeal. Similarly, the employer may be empowered to award the prevailing employee with remedies to fix the underlying employment harm, including payment of money or reinstatement of the employee.
The types of employment law disputes that may be heard through an internal grievance or complaint vary. Disputes about the interpretation of an employment contract or collective bargaining agreement are typically fair game for internal grievances. Employers may also attempt to resolve retaliation or whistleblower retaliation claims by way of internal resolution procedures. This includes retaliation under California Labor Code section 1102.5, California’s general whistleblower retaliation law. Employers and employees may also seek to resolve discrimination, harassment, and retaliation claims under the California Fair Employment and Housing Act (“FEHA”) through its internal resolution procedures. The FEHA prohibits harassment and discrimination based on disability, gender, race, religion, pregnancy, and prohibits retaliation for opposing employer conduct that is made unlawful by the FEHA.
What are the different names of internal remedies?
Internal remedies are referred to by a variety of different names, including an employment "grievance". Because grievances are typically affiliated with unionized places of employment, including public school districts and governmental entities, grievances are normally submitted by a union representative on behalf of the employee. Internal remedies may also be simply referred to as “complaints” if pursued pursuant to an employer’s own policies or Memorandum of Understanding. Lastly, internal remedies may also include complaints filed with a specific Civil Service Commission. Counties, cities, and other governmental districts may all run Civil Service Commissions that are designed, at least in-part, to resolve employment law disputes.
Why do employees submit internal complaints instead of going to regular court?
There are a variety of reasons why employees submit internal complaints with their employer over even significant employment law disputes. Employees typically utilize internal complaint procedures because they overestimate the integrity of the internal resolution process, have not contacted outside counsel, and are unaware that pursuing internal remedies can have significant negative impacts on their potential FEHA or retaliation case.
If the employee belongs to a union, the employee’s union or union representative often pushes the underlying employee to submit a grievance or other internal complaint. This is often the case even when the employee has been fired for potentially significant FEHA and unlawful retaliation violations. Unfortunately, union representatives and leadership are often misinformed about the potential legal ramifications of pursuing internal remedies. Moreover, employees often view their union representative as having special expertise in employment law and overrely on their union representative for legal advice. In reality, union representatives frequently have no legal training whatsoever, especially when it comes to the California Fair Employment and Housing Act or unlawful retaliation.
Employees often pursue internal complaints because they sincerely believe that their complaint will be taken seriously, that they will be given a fair hearing, and that those in charge of the process will act in a neutral way. Sadly, this is never the case.
On paper internal remedies claim to be fair and even claim to provide a host of benefits to the employee not available to the employee in regular court. Unfortunately, California public policy mindlessly parrots the existence of these purported “benefits” and frequently advocates for the use of internal remedies. (See Romero v. County of Kern (2025) No. F088325 [“[a]llowing the administrative agency or organization an opportunity to redress the alleged wrong without interference by the courts may make litigation unnecessary and relieve the courts of an unnecessary burden”.]) In reality, internal complaint procedures are a sham, are designed to protect the employer, and to thwart meritorious employee lawsuits before they can start.
For example, oftentimes the decisionmakers in an internal complaint process are current employees, work in management, or are otherwise closely aligned with the employer. Even in the event of an “appeal” of an internal grievance, upper level managers are chosen as substantive judge and jury. Moreover, the managers placed in decision making positions during internal complaint procedures often do little to no actual work themselves on the underlying grievance, but instead rely entirely on outside defense attorneys hired by the employer to protect them.
Lastly, employees who have chosen to pursue an internal remedy for significant FEHA or whistleblower retaliation claims almost universally have not yet spoken to a plaintiff’s employment law attorney of their own. In other words, the employee is unaware that the internal process is unlikely to be effective, that better court procedures exist, and that there are significant negative repercussions to pursuing internal remedies. While there are some circumstances where the use of internal employer remedies may be necessary or appropriate, they should only be pursued after speaking with an attorney.
Are there reasons to not pursue internal remedies for FEHA and retaliation claims?
There are numerous reasons for an employee to not pursue internal employer remedies to resolve significant FEHA or retaliation claims. First, FEHA claims have their own separate administrative exhaustion requirements through the California Civil Rights Division, formerly called the California Department of Fair Employment and Housing (“DFEH”). As such, unlike other types of claims, it is arguably never required that the employee pursue internal remedies with the employer before suing for FEHA violations in regular court. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074.) While the employee is sometimes required to pursue internal employer remedies before suing for whistleblower retaliation, this is frequently not the case. In other words, pursuing internal remedies is never required under the FEHA and only required for retaliation claims in some instances.
Second, the internal complaint process is designed to protect the employer, and not to achieve a fair and just result for the employee. Pursuing internal complaint procedures is designed to “tip off” the employer to potential legal claims so that the employer can destroy evidence, perform a whitewashed investigation, and intimidate co-worker witnesses. Moreover, “judge” and “jury” in an internal complaint process are oftentimes on the employer’s payroll or are themselves intimidated against ruling in favor of the employee.
Third, an employer’s internal complaint resolution procedures are not fair, or at a minimum, do not compare to the procedures and processes available to the employee in regular California State court. The employee is often limited in terms of what evidence he or she can present, and almost universally the employee will not have a meaningful enough time to gather that evidence. In contrast to regular court, which has the power to grant lost wages as well as emotional distress damages, attorneys fees, reinstatement, and punitive damages, an employer will typically only provide menial remedies to the employee, assuming the employee actually wins. Because employer resolution procedures are known to be unfair, employees may struggle to even find an attorney willing to represent them, especially on a contingent basis.
Lastly, if an employee pursues an employer’s internal legal remedies, that employee can be barred from later pursuing the same claims in regular court. This is because of a legal doctrine called “election of remedies” or “res judicata” that prohibits an employee from switching between different legal procedures on the same set of facts.
What should employees do if they have potential discrimination, harassment, or retaliation claims?
Employees with potential harassment, discrimination, or retaliation claims should promptly contact an attorney that specializes in the area of employment law. The employee should not wait until he or she is terminated before doing this, if at all possible. An attorney specializing in the area of employment law can advise if pursuing an employer’s internal remedies would be a good idea or not. The same type of attorney can determine if other types of administrative exhaustion are in-fact required, such as obtaining a Right to Sue Letter letter from the Civil Rights Division or submitting a Government Tort Claim with the underlying governmental entity.
