Tolling Agreement — California Civil Rights Department (FEHA Claims)

TOLLING AGREEMENT

California Civil Rights Department (CRD) / Fair Employment and Housing Act (FEHA) Claims

THIS IS A LEGALLY BINDING AGREEMENT THAT AFFECTS THE RIGHTS OF THE PARTIES. EACH PARTY IS ADVISED TO CONSULT WITH INDEPENDENT LEGAL COUNSEL BEFORE EXECUTING THIS AGREEMENT.

PARTIES

COMPLAINANT:

Name: [________________________________]
Address: [________________________________]
[________________________________] (City, State ZIP)
Phone: [________________________________]
Email: [________________________________]

Represented By:
[________________________________] (Attorney Name)
State Bar of California No. [____________]
[________________________________] (Firm Name)
[________________________________] (Address)
Phone: [________________________________]
Email: [________________________________]

RESPONDENT:

Name: [________________________________]
Address: [________________________________]
[________________________________] (City, State ZIP)
Phone: [________________________________]
Email: [________________________________]

Represented By:
[________________________________] (Attorney Name)
State Bar of California No. [____________]
[________________________________] (Firm Name)
[________________________________] (Address)
Phone: [________________________________]
Email: [________________________________]

CRD CASE INFORMATION:

CRD Case No.: [________________________________]
Date Complaint Filed with CRD: [__/__/____]
CRD Regional Office: [________________________________]
Assigned Investigator/Mediator: [________________________________]

RECITALS

WHEREAS, Complainant [________________________________] ("Complainant") filed a complaint with the California Civil Rights Department ("CRD," formerly the Department of Fair Employment and Housing or "DFEH") on or about [__/__/____], bearing CRD Case No. [________________________________] (the "CRD Complaint"), alleging violations of the California Fair Employment and Housing Act, Government Code § 12900 et seq. ("FEHA"), arising out of Complainant's employment with Respondent [________________________________] ("Respondent");

WHEREAS, the CRD Complaint alleges, among other things, the following claims against Respondent (check all that apply):

☐ Employment discrimination based on [________________________________] (protected characteristic(s)) in violation of Gov. Code § 12940(a)
☐ Harassment based on [________________________________] in violation of Gov. Code § 12940(j)
☐ Retaliation for engaging in protected activity in violation of Gov. Code § 12940(h)
☐ Failure to prevent discrimination, harassment, or retaliation in violation of Gov. Code § 12940(k)
☐ Failure to provide reasonable accommodation in violation of Gov. Code § 12940(m)
☐ Failure to engage in the interactive process in violation of Gov. Code § 12940(n)
☐ Other FEHA violations: [________________________________]

WHEREAS, the alleged unlawful employment practices occurred on or about [__/__/____] through [__/__/____] (the "Relevant Period");

WHEREAS, under Government Code § 12960(e), a complaint alleging a violation of FEHA must be filed with the CRD within three (3) years of the date upon which the alleged unlawful practice occurred;

WHEREAS, under Government Code § 12965(b), after the filing of a complaint with the CRD, the Complainant may obtain a right-to-sue notice and must file a civil action within one (1) year after the date the CRD issues the right-to-sue notice;

WHEREAS, the Parties desire to engage in good faith settlement negotiations and/or participate in the CRD's administrative process, including but not limited to investigation, mediation, or conciliation;

WHEREAS, the Parties desire to preserve the status quo with respect to the applicable statutes of limitations and administrative deadlines during the negotiation and administrative process, without prejudice to either Party's rights or defenses;

WHEREAS, under California law, parties may enter into a voluntary written agreement to toll (suspend) the running of applicable statutes of limitations, and such agreements have been recognized as enforceable. See Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 933 (recognizing that parties may toll the statute of limitations by agreement);

WHEREAS, SB 1022 and related legislation have clarified that the deadlines for CRD to complete its investigation and file a civil action may be tolled by voluntary agreement, recognizing tolling agreements as a well-established tool to facilitate settlement;

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. TOLLING PERIOD

1.1 Commencement of Tolling Period

The tolling period under this Agreement (the "Tolling Period") shall commence on [__/__/____] (the "Tolling Commencement Date").

1.2 Initial Duration

The Tolling Period shall continue for an initial period of [____] days (the "Initial Term"), expiring on [__/__/____], unless:

(a) Extended by mutual written agreement of the Parties; or
(b) Terminated earlier by either Party in accordance with Section 7 of this Agreement.

1.3 Extensions

The Parties may extend the Tolling Period by mutual written agreement. Any extension must be signed by all Parties (or their authorized counsel) and shall specify the new expiration date. There is no limit on the number of extensions, provided that each extension is documented in writing.

1.4 Calculation of Remaining Time

As of the Tolling Commencement Date, the Parties acknowledge the following status of applicable limitations periods:

2. SCOPE OF CLAIMS TOLLED

2.1 FEHA Claims

The Tolling Period shall apply to the running of all statutes of limitations, statutes of repose, and administrative filing deadlines applicable to the following claims arising from the facts alleged in CRD Case No. [________________________________]:

(a) All claims under the California Fair Employment and Housing Act, Government Code § 12900 et seq., including but not limited to:

• Discrimination (Gov. Code § 12940(a))
• Harassment (Gov. Code § 12940(j))
• Retaliation (Gov. Code § 12940(h))
• Failure to prevent (Gov. Code § 12940(k))
• Failure to accommodate (Gov. Code § 12940(m))
• Failure to engage in interactive process (Gov. Code § 12940(n))
• Aiding and abetting (Gov. Code § 12940(i))

2.2 Related State Law Claims

(b) All common law claims arising from the same facts as the CRD Complaint, including but not limited to:

• Wrongful termination in violation of public policy
• Intentional infliction of emotional distress
• Negligent hiring, supervision, or retention
• Breach of implied covenant of good faith and fair dealing
• Defamation
• Fraud or misrepresentation

2.3 Labor Code Claims

(c) All claims under the California Labor Code arising from the same facts as the CRD Complaint, including but not limited to:

• Labor Code § 1102.5 (whistleblower retaliation)
• Labor Code § 98.6 (retaliation for filing wage claim)
• Labor Code § 232 (wage discussion retaliation)
• Other: [________________________________]

2.4 Administrative Deadlines

(d) All CRD administrative deadlines, including:

• The deadline for CRD to complete its investigation
• The deadline for requesting a right-to-sue notice under Gov. Code § 12965(b)
• Any statutory deadline for the CRD to file a civil action

2.5 Exclusions

The following are expressly excluded from the scope of this Tolling Agreement:

☐ Claims arising from facts not alleged in CRD Case No. [________________________________]
☐ Claims under federal law (including Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Americans with Disabilities Act; the Age Discrimination in Employment Act)
☐ Claims filed with the Equal Employment Opportunity Commission (EEOC)
☐ Workers' compensation claims
☐ Unemployment insurance claims
☐ Other: [________________________________]

3. EFFECT OF TOLLING

3.1 Suspension of Limitations Periods

During the Tolling Period, time shall not run against any of the claims described in Section 2 for purposes of any applicable statute of limitations, statute of repose, or administrative filing deadline. The limitations clock for each covered claim is fully suspended as of the Tolling Commencement Date.

3.2 Resumption of Limitations Periods

Upon termination or expiration of the Tolling Period (as described in Section 7), the applicable statutes of limitations and administrative deadlines shall resume running on the next calendar day following the effective date of termination or expiration. Each covered claim shall have the same amount of time remaining in its limitations period as existed on the Tolling Commencement Date.

3.3 No Waiver of Time Already Expired

This Agreement does not revive any claim for which the applicable statute of limitations has already expired as of the Tolling Commencement Date. The Parties do not waive any defense based on the expiration of a limitations period prior to the Tolling Commencement Date.

4. PRESERVATION OF RIGHTS AND DEFENSES

4.1 No Admission of Liability

This Agreement is entered into for the purpose of facilitating good faith settlement discussions and/or the CRD administrative process. Nothing in this Agreement shall constitute, or be construed as, an admission of liability, wrongdoing, or fault by any Party. Respondent expressly denies all allegations in the CRD Complaint.

4.2 Preservation of Defenses

All defenses available to any Party, whether procedural or substantive, are expressly preserved, including but not limited to:

• Statute of limitations defenses (to the extent not tolled by this Agreement)
• Failure to exhaust administrative remedies
• Failure to mitigate damages
• After-acquired evidence
• Legitimate, nondiscriminatory reasons for employment actions
• Business necessity
• Bona fide occupational qualification
• Good faith
• Any other affirmative defense available under FEHA or applicable law

4.3 Preservation of Claims

All claims available to the Complainant are expressly preserved, subject to the limitations set forth in Section 2.5.

4.4 No Waiver of Rights

No Party waives any right, claim, or defense by entering into this Agreement, except as expressly stated herein regarding the tolling of limitations periods.

5. EFFECT ON CRD ADMINISTRATIVE PROCESS

5.1 CRD Investigation

This Agreement does not affect the CRD's independent authority to investigate the complaint, issue a determination, or take any other action within its statutory authority under FEHA.

5.2 Right-to-Sue Notice

If Complainant requests and receives a right-to-sue notice from the CRD during the Tolling Period:

(a) The one (1) year period to file a civil action under Gov. Code § 12965(b) shall be tolled during the remainder of the Tolling Period; and

(b) Upon termination or expiration of the Tolling Period, Complainant shall have the greater of:

• The time remaining in the one-year right-to-sue period as of the date the right-to-sue notice was issued, minus any time that elapsed between issuance and the beginning of tolling; or
• [____] days from the date of termination or expiration of the Tolling Period.

5.3 CRD Mediation

If the Parties are participating in CRD-facilitated mediation, this Agreement is intended to facilitate that process. The Parties agree to participate in mediation in good faith.

5.4 No Bar to CRD Action

Nothing in this Agreement shall be construed to limit or bar the CRD's independent authority to file a civil action, seek injunctive or other equitable relief, or take any enforcement action under FEHA.

6. CONFIDENTIALITY

6.1 Confidential Agreement

The existence and terms of this Agreement, and all settlement discussions undertaken during the Tolling Period, are confidential and shall not be disclosed to any person or entity other than:

(a) The Parties and their respective legal counsel;
(b) The CRD, to the extent necessary for the administration of CRD Case No. [________________________________];
(c) Any mediator engaged by the Parties;
(d) Each Party's accountants, tax advisors, or insurers, to the extent reasonably necessary;
(e) As required by court order or applicable law.

6.2 Inadmissibility

All settlement discussions conducted during the Tolling Period are inadmissible in any subsequent proceeding under California Evidence Code § 1152 and Federal Rule of Evidence 408.

7. TERMINATION OF TOLLING

7.1 Automatic Expiration

The Tolling Period shall automatically expire on [__/__/____] (the expiration of the Initial Term), unless extended pursuant to Section 1.3.

7.2 Termination by Notice

Either Party may terminate this Agreement at any time by providing [____] days (minimum fifteen (15) days recommended) written notice to the other Party and to the CRD (if applicable). The termination notice must:

(a) Be in writing;
(b) Be sent by ☐ certified mail, return receipt requested / ☐ email with confirmation of delivery / ☐ personal delivery;
(c) Specify the effective date of termination (which shall not be fewer than [____] days after the date of the notice);
(d) Be sent to the other Party's counsel of record at the address set forth in this Agreement.

7.3 Effective Date of Termination

The Tolling Period shall terminate on the later of:

(a) The expiration date set forth in Section 7.1; or
(b) The date specified in the termination notice under Section 7.2; or
(c) The [____]th day after the termination notice is deemed received.

7.4 Effect of Termination

Upon termination or expiration of the Tolling Period:

(a) All tolled limitations periods shall resume running on the next calendar day;
(b) Each covered claim shall have the same remaining time in its limitations period as existed on the Tolling Commencement Date;
(c) All rights and defenses preserved under Section 4 shall remain in full force and effect;
(d) The confidentiality provisions of Section 6 shall survive termination.

8. GOOD FAITH NEGOTIATION

8.1 Commitment to Good Faith

During the Tolling Period, the Parties agree to engage in good faith settlement negotiations and/or participate in the CRD's administrative process, including mediation if requested by the CRD or agreed to by the Parties.

8.2 No Obligation to Settle

Nothing in this Agreement obligates any Party to reach a settlement or to accept any particular terms. Each Party retains the absolute right to reject any settlement proposal and to pursue all available legal remedies upon termination of the Tolling Period.

8.3 Cooperation

The Parties agree to cooperate in scheduling and participating in settlement discussions and/or mediation during the Tolling Period. Each Party shall designate a representative with authority to negotiate and, if applicable, to participate in mediation.

9. GENERAL PROVISIONS

9.1 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles.

9.2 Entire Agreement

This Agreement constitutes the entire agreement between the Parties with respect to the tolling of statutes of limitations for the claims described herein. This Agreement supersedes all prior oral or written agreements, understandings, or negotiations regarding the subject matter hereof.

9.3 Amendments

This Agreement may not be modified, amended, or supplemented except by a written instrument signed by all Parties or their authorized counsel.

9.4 Severability

If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall continue in full force and effect. The invalid provision shall be reformed to the minimum extent necessary to make it valid and enforceable while preserving the Parties' intent.

9.5 Counterparts

This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures and facsimile signatures shall be deemed valid and binding.

9.6 Authority

Each person signing this Agreement represents and warrants that he or she has full power and authority to execute this Agreement on behalf of the Party for whom he or she signs, and to bind that Party to the terms hereof.

9.7 No Third-Party Beneficiaries

This Agreement is intended solely for the benefit of the Parties and their respective successors and assigns. Nothing in this Agreement shall confer any rights, remedies, or obligations upon any person or entity that is not a Party to this Agreement, except that the CRD's rights under FEHA are expressly preserved.

9.8 Notices

All notices under this Agreement shall be in writing and shall be deemed given when:

(a) Delivered personally;
(b) Sent by certified mail, return receipt requested, postage prepaid; or
(c) Sent by email with confirmation of delivery.

Notices shall be sent to the Parties at the addresses set forth above, or to such other address as a Party may designate in writing.

9.9 Construction

This Agreement has been negotiated by the Parties and their counsel. No provision shall be construed against any Party on the ground that such Party drafted the provision.

9.10 Binding on Successors

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, successors, and assigns.

SIGNATURES

IN WITNESS WHEREOF, the Parties have executed this Tolling Agreement as of the date last signed below.

COMPLAINANT

Signature: _________________________________

Printed Name: [________________________________]

Date: [__/__/____]

COMPLAINANT'S COUNSEL

Signature: _________________________________

Printed Name: [________________________________]

State Bar of California No.: [____________]

Firm: [________________________________]

Date: [__/__/____]

RESPONDENT

Authorized Representative Signature: _________________________________

Printed Name: [________________________________]

Title: [________________________________]

Date: [__/__/____]

Capacity Representation: By signing below, the undersigned represents that he/she is authorized to execute this Agreement on behalf of Respondent and to bind Respondent to the terms hereof.

RESPONDENT'S COUNSEL

Signature: _________________________________

Printed Name: [________________________________]

State Bar of California No.: [____________]

Firm: [________________________________]

Date: [__/__/____]

ACKNOWLEDGMENT BY CRD (IF APPLICABLE)

The California Civil Rights Department acknowledges receipt of this Tolling Agreement and notes the agreed-upon tolling of applicable deadlines in CRD Case No. [________________________________].

CRD Representative: _________________________________

Title: [________________________________]

Date: [__/__/____]

☐ CRD acknowledges the tolling arrangement as consistent with its administrative process.
☐ CRD declines to sign but does not object to the Parties' tolling agreement.
☐ Other: [________________________________]

EXHIBIT A — TOLLING PERIOD CALCULATION WORKSHEET

This worksheet is provided for the Parties' convenience in tracking the tolling period and remaining limitations periods.

SOURCES AND REFERENCES

• California Fair Employment and Housing Act (FEHA): Gov. Code § 12900 et seq.
• Gov. Code § 12960 (CRD Complaint Filing): law.justia.com/codes/california/code-gov/title-2/division-3/part-2-8/chapter-7/article-1/section-12960/
• Gov. Code § 12965 (Right-to-Sue / Civil Action): codes.findlaw.com/ca/government-code/gov-sect-12965/
• Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924: law.justia.com/cases/california/court-of-appeal/3d/201/924.html
• SB 1022 (Tolling by Voluntary Agreement): sjud.senate.ca.gov/sites/sjud.senate.ca.gov/files/sb_1022_skinner_sjud_analysis.pdf
• California Civil Rights Department: calcivilrights.ca.gov
• FEHA Blog — Equitable Tolling: fehablog.com/?p=442
• FEHA Statute of Limitations Overview: workplacerightslaw.com/library/faq/feha-statute-of-limitations/
• California Evidence Code § 1152 (Settlement Discussions Inadmissible)
• State Bar of California: calbar.ca.gov