[co-author: Jillian Kaltner]
Starting January 1, 2020, California employees will have three times as long to file charges alleging discrimination, harassment and retaliation. The new statute of limitations arises from AB 9, which increases the statute of limitations for filing a charge under the Fair Employment and Housing Act (“FEHA”) from 1 year to 3 years. AB 9 is certain to have a significant impact on employers in the years that follow, but employers can mitigate the potential burden of this statute by understanding the new law and how to prepare for it. Below is some background and helpful tips for employers.
Origin: The Plaintiff’s bar and union groups have tried for years to extend the statute of limitations on FEHA claims of discrimination, harassment, and retaliation. In years past, former California Governor Jerry Brown rejected these efforts, noting that the 1 year statute of limitations encouraged prompt reporting and resolution of alleged employer wrongdoing. In the wake of the #MeToo movement, however, Governor Gavin Newsom signed AB 9 into law on October 10, 2019. The original purpose of the law was to allow more time for people who alleging sexual harassment to process the incidents before filing a claim. But the law applies more broadly and extends the statute of limitations for all forms of discrimination, harassment and retaliation under the FEHA.
How it works: To file a lawsuit for a harassment, retaliation or discrimination under FEHA in court, an employee must first file a charge with the Department of Fair Employment and Housing (“DFEH”) within three years of the date of the alleged violation. Then, the employee must receive a right-to-sue letter from the DFEH before filing a lawsuit. Generally, employees will request and be granted an immediate right-to-sue letter. However, a right-to-sue letter may also be issued after the DFEH investigates an employee’s complaint and decides not to bring a lawsuit against the employer. In those circumstances, the DFEH must notify the employee of their decision within 150 days of receiving the initial complaint, and at the employee’s request issue a right-to-sue letter. The process of issuing a right to sue letter will not be changed by AB 9.
After receiving the right to sue letter, an employee has 1 year to file her/his lawsuit. AB 9 extends the amount of time that person has to initially file a charge with the DFEH from 1 year to 3 years after the alleged unlawful conduct occurred.
Impact: The longer filing period may significantly impact the employer’s ability to investigate; respond and explain its story to the DFEH or defend itself in any subsequent litigation because during the significantly longer statute of limitations period, key witnesses might leave the company or their memories could fade or records may have been destroyed.
Some guidance on how to prepare: There is no bright line set of practices, or one set off processes, for employers to follow given the three-fold increased in the filing period. Some element to consider are:
- Document, document, document! As time passes, memories fade, documents go missing or emails get deleted, and key witnesses may move on to other companies. To help defend the company, instruct all managers or supervisors to thoroughly document all employee write-ups, performance reviews, adverse personnel actions, etc. Review your document retention systems. Ensure you have a good internal complaint process for filing complaints and conducting investigations. Consider engaging an outside investigator or, retain an outside attorney to conduct a privileged investigation, into any allegation of discrimination, harassment or retaliation.
- Preserve! Update internal document preservation policies and train employees on these policies. Employers should continue to promptly issue legal hold notices when threatened with litigation, and be aware of any auto-delete functions on company communications.
- Prevent! Continue to conduct annual sexual harassment training for supervisors (and, starting 2021, for non-supervisors as well). Make EEO compliance training available for all management personnel. Make sure that all employees are trained on how to promptly report any complaints of discrimination, harassment and retaliation in the workplace and appropriate personnel understand how to promptly respond.
This is one of several changes in California employment law that goes into effect January 1, 2020. Other important changes employers should be aware of include new requirements for lactation rooms, a new independent contractor test, and new standards governing the enforceability of arbitration agreements.