In the wake of the #MeToo movement, AB 9 – the “Stop Harassment and Reposting Extension“ (SHARE) Act – went into effect on January 1, 2020. The legislation extends employees’ reporting deadline for alleged statutory claims to three years from the date of the employer’s alleged unfair employment practice or act. We expect the legislation to increase the number of statutory employment claims by California employees, because it gives employees and their counsel additional time to investigate and eventually prosecute claims that are already incentivized by existing fee-shifting provisions. The new law does not, however, revive lapsed claims for any alleged employer misconduct that expired prior to January 1, 2020.
Before filing a civil complaint alleging unlawful employment practices under California’s Fair Employment and Housing Act (the FEHA), employees in California must file a Charge of Discrimination with the California Department of Fair Employment and Housing (DFEH) to exhaust their administrative remedies. Upon filing, the employee may request and must ultimately obtain a Right to Sue Notice before filing a civil lawsuit against their employer. Alternatively, the DFEH may assign an investigator to look into the employee’s complaints. This procedural step is a must do for employees, and the failure to file a timely DFEH Charge of Discrimination can bar certain employment claims.
Prior to January 1, 2020, employees alleging unlawful employment practices had one year from the alleged wrongful practice or act to file a DFEH Charge of Discrimination. AB 9 extends this deadline three-fold to an unprecedented three-year filing period. The only potential claims excluded from this new law, based on the express language of AB 9, are lapsed claims (i.e. claims alleging employer misconduct that occurred no later than December 31, 2018).
There is now some debate whether employers’ alleged misconduct as of January 1, 2019 is governed by the newly enacted three-year filing period. While rules of statutory interpretation suggest AB 9 should not apply retroactively, this argument has yet to be tested. Considering the impact of the recent #MeToo efforts and the slew of legislation coming out of that movement that increases employee protections in the workplace, we fully expect California courts will interpret AB 9 to cover employers’ alleged misconduct during the interim period.
Given the practical implications of this new law, we recommend employers review and update employee handbooks related to grievance procedures and investigations as well as document retention. These measures could help ensure relevant documents and information that may relate to the defense of potential employment claims are obtained and maintained for the appropriate amount of time. As employers will likely face an increasing number of stale employment claims that can be difficult to defend due to typical operations, including employee turnover, contemporaneous documentation and retention will be crucial. For guidance and further recommendations, please contact any of our employment attorneys at Gordon Rees Scully Mansukhani, LLP who are equipped to discuss the impact of this new legislation and help develop proactive best practices in response to AB 9 in 2020.