As the end of the year approaches, so too does the time for new legislation. For employers in California, that can often mean substantial changes in government mandates and operating requirements.
Among new laws taking effect this coming year is Senate Bill 807, signed by Governor Newsom in September. Beginning on January 1, 2022, employers will be required to retain personnel records for applicants and employees for a minimum of four years (up from the previous requirement of three years).
That time could be expanded further if the employer is notified that a complaint has been filed through the California Department of Fair Employment and Housing (DFEH). In such instances, an employer is required to retain the records until either the matter has been resolved or until after the first date for a civil action has passed. The employer must then retain related personnel records until receiving notification that the action has been resolved or after the filing period has expired.
As an employer, understanding the obligation to respond to a records request and the parameters of compliance (and ability to deny requests), are paramount to reputation and litigation protection.
HOW RETAINING ACCURATE RECORDS PROTECTS AN EMPLOYER’S BEST INTEREST
A legislative update is an excellent opportunity to take inventory of current company policies for record keeping and retention. A streamlined company policy for keeping and retaining records is of paramount importance, both for legal compliance and protection. Labor Code Section 1198.5 outlines the rights of former and current employees to request a copy of their personnel records, including information about the employee’s performance.
As outlined by the California Department of Industrial Relations, personnel records are “those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.” While not all-inclusive, examples of personnel records that may be requested include:
- Employment application
- Payroll authorization form
- Layoff, leave of absence, vacation, and related notices
- Wage attachment or garnishment notices
- Any education/training notices and records
- Performance reviews and/or appraisals
- Warnings, discipline, and/or termination notices
- Attendance and related records
A streamlined record retention policy not only prepares an employer for a legal request from any personal or government entity, but best positions an employer for any changes to compliance laws and related requirements.
THE BIGGER PICTURE: SB 807 ENACTED TO ADDRESS CIVIL RIGHTS COMPLAINTS MORE EFFECTIVELY
Authored by Senator Bob Wieckowski from Fremont, California, the bill was created to help increase the efficiency of the Department of Fair Employment and Housing (DFEH) as well as enhance and update civil rights enforcement. According to Senator Wiecowski’s recent press release, there are several changes that SB 807 enacts:
- To save costs, it allows the DFEH to serve administrative complaints electronically.
- Specifies deadlines for people to file complaints, updating the Fair Employment and Housing Act.
- Creates greater parity with the federal U.S. Equal Employment Opportunity Commission.
- Lengthens the time required for employers to keep relevant records (from three years to four) to account for the longer time people have to file employment discrimination complaints.
- Makes voluntary settlements more likely by tolling (pausing) the statute of limitations for filing a civil action while the complaint is pending with the Dispute Resolution Division within the DFEH.
Senator Wieckowsk is optimistic about the systemic improvements from compliance to SB 807, stating:
“All of these changes in SB 807 will improve the department’s work on behalf of California, increase savings and enable it to more effectively address the thousands of complaints before the DFEH. By implementing these steps, the department can better enforce our civil rights laws to fight unlawful discrimination and harassment in employment, housing, businesses and state-funded programs.”
PROPER DEFENSE PROVIDES EXPERT ADVICE IN PREVENTING AND RESOLVING EMPLOYER COMPLIANCE ISSUES
As an employer, it is advantageous to have sound legal advice and representation while navigating complex record retention and other employment laws.
Proper Defense Civil Division Founder Justin Vecchiarelli focuses his practice in employment and labor law. His extensive experience has helped businesses of all sizes make sure they are in compliance (and continue to stay in compliance). At Proper Defense, we are uniquely qualified to help businesses navigate the continuously updated requirements of state and federal employment law.
For a true advocate that you can trust, in a judgment-free zone, contact Proper Defense Law Corporation today. For a FREE consultation in the Fresno area, call (559) 825-3800. You can reach us at our Beverly Hills location by calling (424) 284-4066. You can also schedule an appointment online on our Contact Us page. It gets better with Proper Defense, we promise.
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