Question:  An employee who quit over two years ago is now threatening to file a claim against my company for discrimination.  Can the employee file such an old claim?

Answer:  No.  But under AB 9 (the Stop Harassment and Reporting Extension Act (“SHARE”)), which Governor Newsom signed into law on October 10, 2019, beginning January 1, 2020, employees will have up to three years to file discrimination, harassment, or other claims of violation of California’s Fair Employment and Housing Act (“FEHA”) with the Department of Fair Employment and Housing (“DFEH”).  This new limitations period is three times the length of California’s current one-year standard and could impede employers’ abilities to defend older claims.  While AB 9 does not revive claims that have already expired, like your former employee’s potential claim, employees with unexpired claims will soon benefit from the new three-year limitations period.

When an employee wishes to bring a formal complaint of a FEHA violation, before filing a lawsuit in court, the employee must first file a complaint with the DFEH either requesting that the DFEH immediately issue a Right to Sue Notice, or that the DFEH investigate the claim, which can take a year or longer, and then issue the Right to Sue Notice when the investigation concludes.  The employee then has one year from the date of receipt of the Right to Sue Notice to file the lawsuit.  Under existing law, an employee has one year from the date of the alleged unlawful act to file that complaint with the DFEH.  Under AB 9, the one year to file the DFEH complaint has been tripled to three years.  As such, at least four full years can pass before an employee files the lawsuit against the employer.

In proposing the bill, the SHARE Act’s author said, “victims of all forms of discrimination and harassment may be initially unclear about what happened, unaware of their rights, or reluctant to report misconduct to their boss.”  The California Chamber of Commerce and 49 other groups opposed the bill stating, “While AB 9 is being promoted as an anti-sexual harassment bill, it actually has a broad, sweeping effect on all employment harassment, discrimination and retaliation complaints . . . and will impose a statute of limitations that is six-times the length of the federal standard and three-times the length of the state standard . . . . If the statute of limitations is tripled for FEHA complaints, the employer will not have the ability to eradicate the inappropriate behavior in a timely and efficient manner. Extending the statute of limitations will reduce the motivation for the victims to quickly come forward. If the employer is not made aware of the harassing or discriminatory conduct, it cannot take the appropriate remedial measures necessary to properly deal with the offender.”  With a lengthy delay in reporting complaints, memories fade and potential witnesses move away, making it much more difficult to achieve a fair and timely resolution of claims.

Because good records are critical in the employment context, employers should be diligent and consistent with their documentation of employee complaints and performance issues, and should review internal document preservation policies to ensure that emails and other relevant documents are archived for at least four years.