On September 19, 2022, Governor Newsom signed into law AB 2777, known as the Sexual Abuse and Cover Up Accountability Act, which suspends the statute of limitations for civil claims brought by sexual assault survivors who were adults at the time of the abuse. The law goes into effect January 1, 2023 and amends Code of Civil Procedure Section 340.16 (“Section 340.16”). AB 2777 will impact businesses operating in California and is expected to generate a sharp increase in sexual assault claims – including related wrongful termination and sexual harassment claims – against California employers through the end of 2023.
Section 340.16 provides that the statute of limitations to commence a civil action for sexual assault which occurred after the plaintiff’s 18th birthday is 10 years from the last act, attempted act, or assault with intent to commit sexual assault, or within three years from the date a plaintiff discovers or reasonably should have discovered that an injury or illness resulted from that act, whichever occurs later. Section 340.16 applies to actions filed on or after January 1, 2019. AB 2777 amends Section 340.16 to provide that actions commenced on or after January 1, 2019 and based on conduct that occurred on or after January 1, 2009 will not be time-barred even if the 10-year statute of limitations has expired so long as those claims are filed by December 31, 2026.
In addition, AB 2777 creates a one-year revival period for a plaintiff to bring an otherwise time-barred claim where the plaintiff alleges (a) she was sexually assaulted, (b) one or more entities are legally responsible for the damages arising out of the sexual assault (through negligence, intentional torts, or vicarious liability) and (c) the entities, including their officers, directors, representatives, employees, or agents engaged in a cover up or attempted to cover up a previous instance or allegation of sexual assault by the perpetrator of such abuse. A plaintiff has until December 31, 2023 to bring such claims. Put simply, AB 2777 creates a one-year revival window for claims against employers alleging a cover-up of sexual assault. “Cover up” is defined as a “concerted effort to hide evidence relating to a sexual assault that incentivizes individuals to remain silent or prevents information relating to a sexual assault from becoming public or being disclosed to the plaintiff, including, but not limited to, the use of nondisclosure agreements or confidentiality agreements.” Importantly, AB 2777 explicitly revives related claims for wrongful termination and sexual harassment where sexual assault formed the basis of those claims.
In light of AB 2777, employers are advised to revisit their policies, procedures, and best practices. If employers require employees to sign confidentiality or nondisclosure agreements, they should make clear such provisions do not prevent employees from discussing facts surrounding sexual assault in the workplace. Employers should implement policies prohibiting any practice that in any way incentivizes the silence around sexual assault and/or remind officers, directors, HR, and other employees of said policies. Employers also need to promptly investigate employee complaints of sexual assault and harassment and ensure accurate records are made and kept.
Note: California is only one of two states that have revived time-barred claims for survivors of sexual assault who were adults at the time of their abuse (New York is the other). Nearly half of all U.S. states have passed similar laws reviving time-barred claims where the survivors were children at the time of the abuse, known as the Child Victim Acts or CVAs.
For more, please contact us as lpasic@pasiclaw.com or by calling 925-307-6316.