Why it matters

California lawmakers are considering new bills that would impact employers, ranging from an extension of the statute of limitations on unlawful discrimination to additional discrimination training and record-keeping requirements to a measure that would protect workers legally using medical marijuana. With the #MeToo movement still in full effect, several pieces of legislation address harassment and discrimination, including AB 1870. Pursuant to the proposed law, employees in California would have three years to file complaints of unlawful discrimination with the Department of Fair Employment and Housing, tripling the current one-year limit. A second measure, AB 2069, would create a new protected category under the Fair Employment and Housing Act: marijuana card holders. The proposed law would “prohibit an employer from engaging in employment discrimination against a person on the basis of his or her status as, or positive drug test for cannabis by, a qualified patient or person with an identification card.” While the bill would not protect users of recreational marijuana, it would present questions with regard to employee use of medical marijuana and reasonable accommodations.

Detailed discussion

A new measure pending in the California legislature would triple the statute of limitations for plaintiffs bringing harassment or discrimination claims. Currently, employees have one year to file a claim with the Department of Fair Employment and Housing (DFEH), which is required before filing a lawsuit pursuant to the Fair Employment and Housing Act (FEHA).

The Stopping Harassment and Reporting Extension Act would triple that time period to three years from the date on which the last discriminatory act occurred. “Violators should not be able to avoid accountability simply because a claim is not filed within 12 months,” Assemblywoman Marie Waldron (R-Escondido), one of the sponsors of the bill, said in a statement.

While a reflection of the current #MeToo movement, the proposed legislation is not limited to sexual harassment and includes all types of harassment and discrimination claims, opening the door to a much broader liability period for employers.

Not surprisingly, other bills addressing sexual harassment and discrimination are also in the works.

Assemblywoman Eloise Reyes (D-San Bernardino) introduced AB 1867, which would require employers with 50 or more workers to maintain records of sexual harassment complaints for 10 years from the date of filing, and Sen. Hannah-Beth Jackson (D-Santa Barbara) filed SB 1300, which would provide guidance to the courts on the “severe or pervasive” legal standard for sexual harassment and prohibit the use of nondisparagement clauses or releases that prevent employees from speaking out about harassment.

The measure also addresses training, requiring all employers to provide sexual harassment training to employees in California within six months of their being hired and once every two years—expanding the scope of the training mandated for employers with 50 or more workers, which are currently required to provide this training only to supervisory employees. In addition, the training would need to include “bystander intervention” education (teaching employees how to interrupt behaviors to prevent harassment) as well as details on how to report harassment and contact the DFEH to file a complaint.

In a different area of employment law, another proposed piece of legislation would establish protections for legal users of medical marijuana in the state. Pursuant to a 2008 decision from the California Supreme Court, Ross v. Ragingwire, employers are not required to accommodate medical marijuana use and can deny employment to users of marijuana, even in light of the Compassionate Use Act of 1996.

However, as the legal use of marijuana has continued to expand—with recreational use now legal in the state as of Jan. 1—the standard may be changing.

AB 2069 would amend FEHA to add “status as, or positive drug test for cannabis by, a qualified patient or person with an identification card” to the list of protected categories.

“The intent of the Legislature in enacting this act is to make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person if the discrimination is based upon the person’s status as a qualified patient or person with an identification card entitled to the protections of the Compassionate Use Act of 1996 or a positive drug test for cannabis by a qualified patient or person with an identification card,” according to the bill.

However, the measure “does not prohibit an employer from terminating the employment of, or taking other corrective action against, an employee who is impaired on the property or premises of the place of employment or during the hours of employment because of the medical use of medical cannabis.”

Nor would the statute “prohibit an employer from refusing to hire an individual or discharging an employee who is a qualified patient or person with an identification card … if hiring the individual or failing to discharge the employee would cause the employer to lose a monetary or licensing-related benefit under federal law or regulations.”

All of the bills are currently pending in committee.

To read AB 1870, click here.

To read 1867, click here.

To read SB 1300, click here.

To read AB 2069, click here.