Legislative Update: Recent Changes to California Law Regarding Employer Record Retention Requirement (SB 807)
September 30, 2021
On September 23, 202, Governor Gavin Newsom signed California Senate Bill 807 extending employer record retention requirements and making procedural changes to Department of Fair Employment and Housing (DFEH) enforcement of civil rights and anti-discrimination laws.
According to the author Senator Bob Wieckowski, “In the eight years that DFEH has been prosecuting civil rights actions, stakeholders have identified sections of the Fair Employment and Housing Act (FEHA) in need of modernization, harmonization, and clarification. SB 807 addresses those issues, improves government efficiency, and provides the FEHA with greater clarity and organization – benefitting employers and employees, housing providers and tenants, and businesses and consumers.”
Here are some points of interest within the bill:
- Effective January 1, 2022, extends the employer record retention requirement from 2 to 4 years with specified extensions when a complaint has been filed (under Government Code section 12946).
- Since the Legislature recently extended the amount of time that workers have to file claims of unlawful employment discrimination (under Assembly Bill 9 of 2019), SB 807 lengthens the record retention requirement to match with the new maximum time period for which those documents could be relevant to a legal claim. The new requirement would oblige employers to hold on to relevant documents for 4 years, with an exception for scenarios in which the employer has been notified that a complaint has been filed with DFEH. In those scenarios only, the employer would be required to retain all the relevant documents until the matter reaches its ultimate resolution, either because the entire administrative and court dispute process has come to an end, or because the worker’s statute of limitations has expired.
- Tolls the statute of limitations, including retroactively but without reviving lapsed claims, for filing a civil action based on specified civil rights complaints under investigation by DFEH until:
- DFEH files a civil action for the alleged violation under this part; or
- 1 year after the department issues written notice to a complainant that it has closed its investigation without electing to file a civil action for the alleged violation.
- Authorizes DFEH to bring a civil action in any county to enforce the civil rights laws under its mandate if the civil action includes class or group allegations on behalf of DFEH.
- Tolls the statute of limitations for DFEH to file civil actions based on the civil rights laws under its mandate for the duration of any voluntary or mandatory referral to DFEH’s mediation program.
- Clarifies that, for any employment discrimination complaint treated by DFEH as a class or group complaint, DFEH must issue a right-to-sue notice upon completion of its investigation, and not later than 2 years after the filing of the complaint.
If you need assistance updating your records retention policies, contact McKague Rosasco LLP.
