Three California Chamber of Commerce-opposed bills that could cause confusion, expand employer liability and increase litigation will be considered in the Assembly Labor and Employment Committee on Wednesday, March 6. All three measures are similar to 2018 bills that were vetoed last year.
AB 9: Extension of Statute of Limitations
AB 9 (Reyes; D-San Bernardino) unnecessarily extends the statute of limitations from one year to three years for all discrimination, harassment and retaliation claims filed with the Department of Fair Employment and Housing (DFEH).
- Identical Bill Vetoed Last Year
Last year, Governor Edmund G. Brown, Jr. vetoed an identical measure, AB 1870 (Reyes), stating, “Employees who have experienced harassment or discrimination in the workplace should have every opportunity to have their complaints investigated. I believe, however, that the current filing deadline—which has been in place since 1963—not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.”
- Extends Statute of Limitations
Although 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.
In fact, the proposed statute of limitations is six times longer than the federal standard, and three times longer than the state standard. Once an individual exhausts his or her administrative remedy, the individual then has an additional year to file a civil action. Therefore, AB 9 actually gives a plaintiff four years to file a Fair Employment and Housing Act (FEHA) civil lawsuit.
- Current Law Protects Victims
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.
Thus, the current statute of limitations not only protects the victims, but also protects future victims from repeat offenders who could continue to harass or discriminate against a victim without anyone notifying the employer of the inappropriate behavior. Potentially, AB 9 puts the needs of a victim above the needs of possible future victims.
- Extending Statute of Limitations Will Overly Burden DFEH and Employers
While recent reports from DFEH do not include the number of complaints the agency dismissed due to lack of evidence, as a reference, approximately 4,100 were dismissed due to lack of evidence in 2011.
Amending the statute of limitations will only cause such cases to increase dramatically. This dramatic increase would not only burden the state agency, but also expose California employers to significant and costly litigation for potentially invalid claims.
- CalChamber Proposes Amendments
CalChamber requests that AB 9 be amended to apply only to sexual harassment claims and explicitly address the retroactivity concerns. With these amendments, AB 9 could achieve its goal of providing sexual harassment victims with additional time to exhaust their administrative remedy, without overburdening DFEH and employers with additional litigation.
AB 170: Labor Contractor Joint Liability
AB 170 (Gonzalez; D-San Diego) expands joint liability for labor contractors to all employment-related harassment claims. This proposed mandate ignores and disrupts current law that already provides liability for harassment claims for third parties.
- Similar Bill Vetoed
AB 3081 (Gonzalez) from last year was considered the author’s omnibus sexual harassment bill. This year, the author took one of the three major provisions of AB 3081 and created AB 170. AB 3081 (2018) was vetoed by Governor Brown on the basis that “This bill creates a new, ill-defined standard of joint liability between labor contractors and client employers, prohibits both entities from retaliating against an employee who has filed a harassment claim, and establishes a 30-day notice requirement before certain workers can file a civil action against a client employer. Most of the provisions in this bill are contained in current law and are therefore unnecessary. To the extent there are new provisions, they are confusing.”
- Compliance Not Objectively Verifiable
The expansion of statutory joint liability under AB 170 is also inappropriate in light of the inability of the business to objectively verify and ensure that a contractor’s workers do not engage in harassing conduct.
Current law already provides an adequate pathway for civil liability for a business that is actually controlling the employees of another, and there is no basis for that analysis to be completely disregarded under AB 170.
AB 171: Sexual Harassment Retaliation Requirements
AB 171 (Gonzalez; D-San Diego) places additional and duplicative sexual harassment protections in the Labor Code. Because those protections already are included in FEHA, AB 171 exposes employers to additional liability, including Private Attorneys General Act (PAGA) claims.
- Causes Confusion, Expands Employer Liability
AB 171 proposes to add sexual harassment retaliation protections to the Labor Code. These new provisions are misplaced and unnecessary. Sexual harassment retaliation should continue to be regulated by the DFEH in order to prevent confusion as an employer might be in compliance with DFEH regulations while violating duplicate or contradictory provisions of the Labor Code or Labor Commissioner enforcement and interpretations.
Similarly, last year, AB 3081 (Gonzalez) attempted to add these same provisions to the Labor Code. AB 3081 was vetoed by Governor Brown on the basis that “[m]ost of the provisions in this bill are contained in current law and are therefore unnecessary.”
- Creates Rebuttable Presumption Against Employer
Under AB 171, it is presumed that an employer retaliated against an employee if the employer takes any corrective action within 90 days of an employee’s complaint or opposition to an employer’s practice or policy regarding sexual harassment.
- Exposes Employers to Additional Liability Under the Labor Code
AB 171 unnecessarily expands employer liability. FEHA already allows victims who prevail in a sexual harassment retaliation lawsuit to obtain compensatory damages, injunctive relief, declaratory relief, punitive damages, and attorney’s fees. If sexual harassment protection is added to the Labor Code, employers are not only exposed to FEHA remedies, but also now lawsuits under PAGA.
Staff Contact: Laura Curtis