CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE – Continuing Violation
Single Topic for Decision 1868M
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1101.04000 – Continuing Violation
* * * OVERRULED by County of San Diego (2020) PERB Decision No. 2721-M, where the Board held that the continuing violation doctrine and new wrongful act doctrine are separate statute of limitations exceptions and must be analyzed separately. As long as the employer policy or local rule continues in effect, charging party can bring claim that it interferes with or discriminates against protected rights or constitutes an unreasonable local rule, irrespective of when employer promulgated it. * * *
The Board has long recognized the continuing violation doctrine. However, a continuing violation will not be found where the employer’s conduct during the limitations period constituted an unfair practice only by its relation to the original offense. In other words, a continuing violation will only be found when the wrongdoer engages in active conduct (i.e., new wrongful act) within the limitations periods that independently constitutes an unfair practice. Thus, in order to invoke the continuing violation doctrine, the offending party must commit a new wrongful act, and this act must be timely challenged by the charging party.