New Law Expands Employer Record Retention Requirements and DFEH Enforcement Powers
New Law Expands Employer Record Retention Requirements and DFEH Enforcement Powers

Senate Bill 807, which becomes effective January 1, 2022, will extend the period in which employers must retain personnel records for applicants and employees from 2 years to 4 years from the date the records were created or received, or the date the employment action was taken. 

In the event that a complaint with the Department of Fair Employment and Housing (“DFEH”) has been filed against an employer, the employer must retain any related personnel records until the employer has been notified that the action has been fully resolved, or the first date after the period for filing a civil action has expired, whichever is later.

This new law also modifies certain DFEH enforcement powers, obligations and procedures, including:

  • Tolling the statute of limitations for matters while they are pending before the DFEH, and providing that this provision will apply retroactively;
  • Extending to two years the period of time that the DFEH has to complete its investigation and issue a right-to-sue notice for employment discrimination complaints treated by the DFEH as a class or group complaint;
  • Requiring a civil action for certain specified unlawful practices to be brought in a particular county;
  • Subjecting the filing of a complaint with the DFEH alleging sexual harassment that occurred as part of a business, service, or professional relationship to a 3-year statute of limitation, which may be extended under specified circumstances;
  • Allowing that the DFEH has the right to investigate and pursue claims on a class basis and providing that it must notify those concerned of the determination to treat a complaint as a group or class complaint within one year after the filing of the complaint; and
  • Requiring that the DFEH require all parties to participate in a mandatory dispute resolution process without charge prior to filing a civil action.

SB 807 is consistent with the recent trend of the California Legislature to expand the enforcement powers conferred on various government agencies. Viewed in this light, SB 807 serves as a reminder to all California employers to remain vigilant in terms of compliance with federal, state, and local employment laws.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2021. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.


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