Deja vu? Actually, yes. With Governor Brown’s departure and Gavin Newsom’s inauguration on January 7th, we expect numerous instances of bills being introduced for the 2019 Legislative Session that were previously vetoed by Governor Brown in prior sessions. The hope of the legislators authoring these previously-vetoed bills is that Governor-Elect Gavin Newsom may view them more favorably than his predecessor.
The first day of Session on December 3rd confirmed those expectations with Assembly Member Eloise Reyes (D) introducing Assembly Bill 9. AB 9 is nearly identical to her bill in the 2018 Session (AB 1870) that Governor Brown vetoed barely three months ago.
AB 9, like AB 1870, proposes to extend the statute of limitations from one year to three years for all employment related discrimination, harassment and retaliation claims filed with the Department of Fair Employment and Housing (DFEH).
Like its predecessor, one of the biggest reasons AB 9 is concerning is because employers are held strictly liable for harassment and/or discrimination if the harasser is a managerial employee. This means that no one else in the company has to know about the harassing behavior for the employer to be held liable. However, if the employer is not made aware of the harassing or discriminatory conduct, the company cannot take the appropriate remedial measures necessary to quickly and properly deal with the offender.
This concern of extending the statute of limitations was raised in Governor Brown’s veto message of AB 1870, in which he said that “[e]mployees 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.”
We will have to see whether Governor Newsom shares these concerns or has a different view.