The 12 Days of California Labor & Employment Series – Day 2: Longer Statute of Limitations for Harassment, Discrimination, and Retaliation Claims was not on Employers' Holiday Wish List

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2020. In the spirit of the season, we are using the "12 days of the holidays" to blog daily about one of these new California laws and the law's impact on California employers. On the second day of the holidays, my labor and employment attorney gave to me: two turtle doves and AB 9.

Historically, an employee needed to initiate state law-based claims of harassment, discrimination, or retaliation under the Fair Employment and Housing Act within one year of the occurrence date. However, as of January 1, 2020, this statute of limitations will be extended from one year to three. Fortunately, this new law will not revive previously expired claims. Employers will, however, now need to deal with a longer period of time of uncertainty as it pertains to potential harassment, discrimination, and retaliation claims. Interestingly, former California Governor Edmund "Jerry" Brown vetoed a similar bill last year, noting that he believed a one year statute of limitations encouraged prompt reporting and also allowed employers to defend a claim with fresh memories. Due to this longer statute of limitations, employers will no longer have such benefits.

It is highly recommended that employers create, reiterate, and enforce new record-keeping procedures. Since documentation will be key in these claims, employers should ensure that investigations are done in a timely fashion, and with contemporaneously written documentation. This includes securing witness statements, in the event that witnesses are unavailable when the claim itself is actually filed. To further prepare for this change, employers should ensure their human resource team is not only well-trained, but also make sure they have a checks and balance system in place, so nothing is missed. Finally, employers should update their policies to maintain records of former employees for four years after their departure date to ensure they have the necessary documentation that might be needed if a claim is filed.