On October 10, 2019, Governor Gavin Newsom signed a law increasing the time employees/former employees have to file claims with the California Department of Fair Employment and Housing (the “DFEH”) from 1 year to 3 years. (Former Governor Jerry Brown vetoed a similar bill last year saying the proposed change in the law would unnecessarily drag out the process of resolving issues in the workplace.) Prior to the enactment of AB 9, employees/former employees had 1 year from the date of an alleged unlawful act to file a claim with the DFEH for purported violations of the California Government Code. The employees/former employees then had an additional 1 year from the DFEH’s issuance of a “Right to Sue” letter to pursue a civil lawsuit. While AB 9 does not change the time period for bringing a court action after a “Right to Sue” letter has been received, it does give employees/former employees an additional 2 years to initiate the administrative complaint process. As a result, employers can now be forced to defend against civil claims for discrimination, harassment, and retaliation that are not filed until 4 (or sometimes more) years after the alleged unlawful activity took place. While the change in the law will not revive claims that are already time barred, it will impact claims based on purported events which took place within the 12 month period prior to the effective date of the new law. The California Chamber of Commerce previously included AB 9 on its list of “job killer” bills that will likely deter business in California and increase litigation and related costs for employers.
To break this down even further, this means an employee/former employee can wait until 3 years after an event, or series of events, that the employee/former employee believes were discriminatory (or harassing or retaliatory) before filing an administrative charge. One impact of the additional time is the amount of potential damages. A finding that discrimination occurred can result in an individual being awarded, among other things, “back pay” (the amount of earnings lost by the employee as a result of the conduct) and “front pay” (the amount of wages an employee will lose in the future as a result of the conduct). With the prior statute of limitations, an employer could mitigate damages by offering reemployment to cut-off the above-mentioned damages. Now, an employer may not even become aware of the claim for 3 or moreyears after the event. There could also be an increase in emotional distress damages and it may be more difficult for an employer to defend against punitive damage claims after so much time has passed. All in all, this new law increases an employer’s potential financial exposure while making it more difficult to defend against discrimination, harassment, and retaliation claims.
COUNSEL TO MANAGEMENT:
While the passage of AB 9 may not have an immediate impact on many employers, it is imperative for companies to ensure they have a comprehensive anti-discrimination/harassment/retaliation policy in place, including the mandated training component. Employers must make sure supervisors are adequately trained on how to handle complaints in the workplace and ensure all complaints are forwarded to the appropriate personnel. Furthermore, an employer’s polices and trainings need to make it obvious employees have been (a) instructed on how to report complaints of harassment and discrimination (including how to file a complaint with the DFEH), (b) told they cannot be retaliated against for doing so, and (c) informed that complaints must be reported right away. This can go a long way towards challenging the credibility of an employee/former employee who waits 3 years to file a claim.
The transient nature of many employees in the agricultural industry makes it all the more important for employers to ensure they prepare and retain adequate documentation of investigations into events which could form the basis for future claims. A lot can happen in 4 years with employee departures, changes in management, etc. and the witness statements taken and documents created at the time of an alleged event may be the only evidence an employer has to help defend against a claim. The experts at the Saqui Law Group, a division of Dowling Aaron Incorporated are available to help you review your anti-discrimination/harassment/retaliation policy and/or current policies/procedures related to employee complaints and resulting investigations so that your Company is prepared to respond to claims that may not arise until years after an individual has left your employment.