Beginning January 1, 2020, an individual’s deadline to exhaust their administrative remedies through advancing a charge of unlawful workplace discrimination, harassment, and retaliation with the California Department of Fair Housing and Employment (DFEH) will be extended from one year to three years.
Assembly Bill 9, known as the Stop Harassment and Reporting Extension (SHARE) Act, is a significant departure from California’s long-standing one-year statute of limitations and from the six-month statute of limitations period under federal law for claims made to the Employee Equal Opportunity Commission. In California, employment claims brought under the Fair Employment and Housing Act cannot be directly filed in court. Individuals must first exhaust their administrative remedies by filing a charge with the DFEH. Once the DFEH receives the charge, it can investigate the claim. If it determines that a violation of the FEHA has occurred, the DFEH may use its discretionary power to file a civil action on behalf of the aggrieved individual. If the DFEH is unable to determine whether a violation took place, or if an individual asks for an immediate right-to-sue letter (which is commonly the case, especially if the individual is represented by counsel), the DFEH closes its investigation and the individual has one year from the date of receipt of the right-to-sue letter to file a civil action against the employer.
The new law will not revive any already lapsed claims under the older one-year statute of limitations, but it remains to be seen whether claims that have not elapsed by December 31, 2019, will receive the benefit of the deadline extension. The legislative history of Assembly Bill 9, however, indicates that claims that have not expired by the time the new law takes effect will likely be extended to conform to the new law. Thus, because a plaintiff can wait one year after lodging a charge with the DFEH to file a civil lawsuit, employers may find themselves in a vulnerable position defending older claims, upward to four years after the alleged discriminatory, retaliatory, or harassing conduct or action took place.
In response to this new law, employers should revisit and update their document retention policies to preserve potential evidence. For example, while California law mandates that employers retain a copy of employees’ personnel files for three years, employers should increase the retention period of personnel files to at least four years to account for the new statute of limitations. Additionally, because employment claims are often centered on witness testimony, which relies on memories that can fade over time, employers should document more frequently, including memorializing counseling notices, write-ups, and facts surrounding the termination or resignation of employees. Finally, employers should ensure that their handbooks are up-to-date and that all of their employees have undergone sufficient training regarding anti-harassment, anti-discrimination, and anti-retaliation policies.