Timing is Everything: AB 9, Statutes of Limitations and the Exhaustion of Administrative Remedies
Nick Ferraro | December 8, 2021 | Employment Law
Understanding the provision of AB 9 is important if you want to file claims under several California discrimination and leave protection laws. AB 9 increased the time to file claims under these laws from one year to three years. However, you still need to be mindful of the statutes of limitations and administrative filing requirements.
What is a Statute of Limitations?
A statute of limitations is a deadline for filing a lawsuit seeking the resolution of a dispute. If you do not file a lawsuit before the deadline in the statute of limitations, you are barred from pursuing a legal claim in court. Statutes of limitations vary depending on the type of claim being filed and the state where the lawsuit is filed.
The reasoning for statutes of limitations is to ensure timely adjudication of disputes between parties. AB 9 extended the statute of limitations for filing claims under several California employment and discrimination laws. However, it does not waive the requirement to exhaust administrative claims before filing a lawsuit in civil court.
Filing Administrative Claims for Employment Discrimination in California
Protected classes in California include:
- Religious creed
- Sexual orientation
- Gender identity
- Marital status
- Military and veteran status
- Medical condition
- National origin
- Genetic information
- Physical disability
- Gender expression
- Mental disability
The Act also requires employers to allow reasonable accommodations for religious beliefs and disabilities. Employees are protected from employer retaliation under the Act, too.
In addition to discrimination, several California laws provide leave protections for employees. In addition to the FEHA, laws impacted by AB 9 include:
- Pregnancy Disability Leave Law
- New Parent Leave Act
- California Family Rights Act
Before filing a lawsuit in civil court based on violations of the above laws, you must file a complaint with the Department of Fair Employment and Housing (DFEH). The DFEH enforces the provisions and protections provided by the above discrimination and leave laws.
AB 9 extended the time to file a complaint with the DFEH under the above laws from one year to three years.
Request Right to Sue Letter or DFEH Investigation
When an employee files a complaint with DFEH, they can request that the agency investigate the allegations of employer wrongdoing. However, they may also request an immediate “right to sue” letter. The letter allows the employee to proceed with a civil lawsuit against the employer without waiting for the outcome of a DFEH investigation.
The DFEH has up to one year from the date the DFEH complaint was filed to complete its investigation and issue a ruling. The DFEH may pursue the action if it finds merit to the allegations. It may issue a right to sue letter at any point before the one-year deadline.
If the DFEH issues a right to sue letter, the employee has just one year from the date of the letter to file a lawsuit in civil court.
It is important to note that other statutes of limitations apply in an employment law case. For example, the statute of limitations for breach of contract is four years, but the deadline to file a lawsuit for breach of an implied or oral contract is just two years.
The statute of limitations for filing lawsuits related to wrongful termination is two years from the termination date. There are other deadlines for filing claims and lawsuits under the Labor Code based on the type of alleged violation.
Employees Should Not Wait to Pursue a Claim
Employees should not wait to pursue a discrimination or employment law claim thinking they have two or more years to file a lawsuit.
First, there could be exceptions to the statute of limitations based on the circumstances surrounding the allegations. Second, the employee may need to exhaust administrative claims before filing a lawsuit.
Lastly, it takes time to gather evidence and prepare a lawsuit. The longer you wait to begin the process, the more likely key evidence could be lost or disappear. As a result, eyewitnesses may forget critical details of the case.
The best way to protect your right to hold an employer responsible for discrimination, violations of employment law, or liability for wrongdoing is to learn about your legal rights and options regarding employment claims and lawsuits as soon as possible.
It may not be wise to rely on the information provided by your employer’s human services department or a government agency. Instead, seeking advice from an experienced San Diego employment law attorney is generally the best way to protect yourself and your legal rights.