An employee must file an administrative charge with the Department of Fair Employment and Housing (DFEH) and obtain a right to sue before the employee may file a lawsuit based on the Fair Employment and Housing Act (FEHA). Governor Gavin Newsom recently signed into law AB-9, which extends the time for an employee to file an administrative complaint of discrimination, harassment, or retaliation with the DFEH from one year to three years. An employee still has one year from receipt of the DFEH right to sue letter to file a lawsuit. This statute goes into effect January 1, 2020.
The new statute will not revive an employee’s claim that expired before January 1, 2020. This suggests that claims that were set to expire in the coming months will now benefit from the rule. The law is not clear whether claims that may be viable as of January 1, 2020, but are not yet filed with the DFEH, will receive the benefit of new extended time periods to file a complaint with the DFEH. This issue will likely be tested with the DFEH and addressed by the courts over the next few years.
WHAT SHOULD EMPLOYERS DO?
Under the new statute, employers may not learn of claims of discrimination, harassment, and retaliation until four years after the alleged misconduct occurred. Employers will want to revisit their records retention policy to ensure they maintain employment records for the entirety of employment plus at least four years. This includes not only personnel files and payroll records, but also internal complaints and investigations.
Now, more than ever, employers should ensure they keep accurate and sufficient documentation of employee-related incidents and performance issues. In particular, employers will want to focus on obtaining witness statements, where appropriate, as the new statute of limitations may result in less witness availability and diminished recollection.
Lagasse Branch Bell + Kinkead LLP can assist employers with questions regarding the laws affecting the timeliness of complaints filed with the DFEH. For more information, please call Jennifer Branch, Esq. at 858.345.5073 or Jessica Yang, Esq. at 858.345.5143.
Jennifer Sarkozy Branch
