VOLUME II Chapter 26 Statutes of Limitations in Employment Cases

• Jurisdiction: South Carolina

Chapter 26 Statutes of Limitations in Employment Cases¹M. Malissa BurnetteBurnette Shutt & McDaniel, PA

I. Introduction

The practice of employment law is somewhat unique in that a single case may include claims under federal and state statutes and regulations, as well as tort claims, contract violations, and common law theories. Each cause of action has its own statute of limitations, and sometimes a pre-lawsuit deadline for asserting claims through a government agency.

This chapter will review some of the most frequently asserted causes of action and their statutes of limitations. However, this guide is no substitute for researching amendments to the current law, the enactment of new statutes, and the issuance of precedent-setting cases when contemplating filing a lawsuit or raising defenses to a claim. Lawsuits must be filed before the expiration of the shortest statute of limitations, even though the case may include claims with longer time limitations. The shorter statutes of limitations will not be tolled by the longer ones in the case.

II. Discrimination Claims

Employment discrimination claims include some of the shortest deadlines found in any field of law. Attorneys with limited experience in employment law are sometimes unaware of the need to advise an employee to exhaust administrative remedies. In the case of federal employees, the deadline for contacting an EEO counselor is only 45 days. Ignorance of these provisions can be fatal to a discrimination case.

A. Exhaustion of Administrative Remedies

For cases arising in South Carolina, the South Carolina Human Affairs Commission (SHAC) is the "deferral" agency for processing discrimination claims under such federal statutes as Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. SHAC has a worksharing agreement with the federal Equal Employment Opportunity Commission (EEOC) to accept and investigate these discrimination claims. SHAC dual-files discrimination charges with EEOC. SHAC also receives charges of discrimination to be filed under the South Carolina Human Affairs Law.

The deadline for filing a charge of discrimination with SHAC is 180 days from the date of the employer's discriminatory conduct. If the 180-day deadline is missed, but less than 300 days have passed, the employee can still file the charge with EEOC.²

SHAC will select certain cases for voluntary mediation. Other cases will be sent directly to investigation. If the case is not settled in mediation or during the investigative stage, SHAC will issue a notice of right to sue. The notice will state that the employee must file a lawsuit under the South Carolina Human Affairs law within 120 days of the notice or within one year of the conduct complained of, whichever occurs first. The SHAC notice sometimes is issued after a year has already passed. The EEOC notice of right to sue usually is issued a few weeks after the SHAC notice. The EEOC's notice will give the employee 90 days in which to sue under the federal law.³ Both agencies' notices will state whether or not the agency found a violation of the statutes. This determination is not binding on the court.

B. Discrimination Statutes Requiring Exhaustion of Administrative Remedies

The following are references to the statutes under which most discrimination cases are brought. Administrative remedies must be exhausted as outlined above before suit can be filed.

1. South Carolina Human Affairs Law: Covers race, color, sex, national origin, religion and age.⁴
2. Title VII of the 1964 Civil Rights Act: Includes discrimination based on sex (including sexual orientation, gender identity, pregnancy and sexual harassment), race, color, national origin, and religion.⁵

Note that federal employees asserting Title VII and other discrimination claims have a separate procedure to follow and must file their claims with the employing agency before filing an EEOC complaint. The employee must initiate contact with his or her agency's EEO counselor within 45 days.⁶ There are very short deadlines following the receipt of the formal notice from the EEO counselor.⁷

3. The Age Discrimination in Employment Act:⁸ Prohibits age discrimination against employees 40 years of age or older. Employee must commence action within 90 days of receipt of EEOC's notice of right to sue.⁹
4. The Americans with Disabilities Act:¹⁰ Protects qualified individuals with disabilities from employment discrimination. A suit must be commenced within 90 days of receipt of EEOC's notice of right to sue.¹¹
5. Title II of the Genetic Information Non-Discrimination Act of 2008 (GINA):¹² Prohibits discrimination in employment based on the use of genetic information. A lawsuit must be filed within 90 days of receipt of EEOC's notice of right to sue.
6. In May 2018, the South Carolina legislature amended the Human Affairs Law upon passage of the South Carolina Pregnancy Accommodations Act.¹³ The law creates the right to be free from discrimination on the basis of pregnancy, childbirth "or related medical conditions" and requires employers to provide certain reasonable accommodations.

C. Exceptions to Requirement for Exhaustion of Administrative Remedies

1. The Equal Pay Act of 1963 (EPA):¹⁴ Covers sex discrimination in the payment of wages. There is no requirement for exhaustion of administrative remedies under the EPA. Suit must be commenced within two years, or within three years if the violation is willful.¹⁵
2. The federal civil rights enforcement statutes codified at 42 U.S.C. Sections 1981, 1983, 1985(3) and 1986 enable private individuals to maintain a cause of action in federal court to enforce rights guaranteed primarily by the First, Thirteenth and Fourteenth Amendments to the United States Constitution. The state's personal injury statute of limitations presumably applies to §§ 1983 and 1985(3). Section 1986 has a one-year statute of limitation.¹⁶

The United States Supreme Court has ruled that a uniform, federal four-year statute of limitations should apply to all claims under § 1981.¹⁷ Previously, courts had looked to state law statutes of limitations in § 1981 cases. The Court found that the four-year limitation set forth in 28 U.S.C. § 1658 should be applied to § 1981 cases. 28 U.S.C. Section 1658 states that, except as otherwise provided by law, the four-year limitation applies to civil actions arising under an Act of Congress enacted after 1990. The employees in Jones v. R.R. Donnelly & Sons Co.¹⁸ successfully argued that, although § 1981 was enacted in post-Civil War times, the ability to bring job bias suits under it did not occur until enactment of the Civil Rights Act of 1991, which amended the law.

3. Discrimination against union members:¹⁹ No express statute of limitations but the most closely analogous limitations period is three years.²⁰

III. Claims for Payment of Wages and Commissions

Statutes under which a claim for unpaid compensation may be brought include the following:

A. The Fair Labor Standards Act (FLSA): Sets minimum wages, overtime provisions and record-keeping rules.²¹ Statute of limitation is two years; three years for willful violations.²²
B. The Payment of Wages Act: Establishes requirements to notify employees of wages and normal hours of work, and requires that employees' final paycheck be issued no later than 30 days after separation from employment. Treble damages and attorneys' fees are available under certain circumstances. The statute of limitation is three years.²³
C. Commissions to sales representatives:²⁴ The statute of limitation for paying commissions to independent contractors who solicit wholesale orders and who do not sell to the ultimate consumer is not express, but the most closely analogous limitation period is three years.²⁵

IV. Benefits and Conditions of Employment

Employees denied various benefits of employment or subjected to unlawful practices may sue under the following statutes:

A. Family and Medical Leave Act:²⁶ Federal employees have no private cause of action and must use the federal employee grievance procedure to enforce their rights. For all other covered employees, the limitation is two years,²⁷ and three years if the violation is willful.²⁸
B. Employee Retirement Income Security Act (ERISA):²⁹ For benefits-related claims, the statute of limitation is three years; for statutory penalty claims under the Consolidated Omnibus Budget Reconciliation Act (COBRA), it is one year.
C. Employee Polygraph Protection Act:³⁰ The statute of limitation is three years.
D.

...