Employees now have three years, rather than one year, to file complaints of discrimination, harassment and retaliation under AB9, also known as the SHARE Act (Stop Harassment and Reporting Extension).
Gov. Jerry Brown vetoed a similar bill last year, reasoning that claims should be filed “while memories and evidence are fresh.”
AB9 is one of a number of new laws affecting the workplace. See our previous posts on AB51 and AB188
Assembly member Eloise Reyes introduced AB9 in response to the #MeToo movement, asserting that many victims need more time “to fully grasp what happened to them” before coming forward. In addition, some employees are afraid of losing their job. AB9 gives them extra time to find a better situation. Then, too, employees may not be immediately aware of their rights to bring suit.
Law isn’t limited to sexual harassment
However, the new law is not limited to sexual harassment. It extends the statute of limitations for all forms of discrimination, harassment and retaliation under the FEHA. The extension means the lawsuit could be filed four years after the alleged wrongdoing. What’s more, the backlog of civial cases in California means it might take even longer before the case goes to trial.
Employers says they should be allowed to deal with claims promptly. After all, they say, if they don’t know about the potentially discriminatory or harassing conduct, they can’t take remedial action.
The more time passes, the more difficult claims are to defend
In addition, sexual harassment claims in particular often evolve around “he said/she said.” Opponents say extending the statutory period to three years creates potential problems, such as faded memories, witnesses who have moved on and are not available, and documents (such as email) that have been eliminated or destroyed. All of that will make it more difficult for employers to defend such claims.
There’s a process before an employee can file a lawsuit for harassment, retaliation or discrimination. The first step is to file a charge with the Department of Fair Employment and Housing (DFEH). Under the new law, the employee has three years to file with the DFEH. When filing, the employee has two choices: 1. request an immediate “right-to-sue” letter so that he or she can sue the employer in civil court. 2. Ask the DFEH to conduct its own investigation into the employer’s alleged wrongdoing.
If the agency initiates an investigation, it must complete that investigation no later than one year from the date the complaint was filed. During that time, the DFEH can close out the file and issue a right-to-sue letter – or prosecute on behalf of the employee.
Once employees have the “right-to-sue” letter, they now have up to one year to file a lawsuit.
Extending the time limit for filing a suit brings it into alignment with time limits for other actions. The statute of limitations is two years for personal injury claims, three years for property damage claims, three years for fraud claims, four years for breach of written contract claims, and ten years for sexual assault.
How can employers protect themselves?
What employers should do:
- Review and update document retention policies.
- Save everything for at least four years. Don’t forget to revise auto-delete functions on your email system.
- Train managers and supervisors to thoroughly document and preserve all employee write-ups, counseling, performance reviews, etc. You may want to include witness satements concerning complains and employee terminations. Remember that witnesses may not be available when you are defending a claim.
- Have a specified process for filing complaints and conducting investigations, and train all employees on those procedures.
- Consider engaging an outside investigator or attorney to investigate any allegations of discrimination, harassment or retaliation.
- If you presently rely on hard-copy files, consider upgrading to an electronic document management systems. Also, backup as much data as you can.
- Let employees know you have an open-door policy, and encourage them to come forward with their complaints.
- Train all supervisors and employees on anti-harassment and discrimination policies and appropriate responses.