Legislative Update: Don’t Toss those Personnel Records Just Yet

by Meagan D. Bainbridge
The Labor & Employment Law Blog

It’s October, and that means the 2020-2021 California legislative session has officially ended, and Governor Newsom has signed many new bills into law. As always, several of these new laws affect employers across the state. Over the next several days/weeks, our employment group will ensure that employers are informed and ready to implement the new laws as 2022 approaches.

First up is SB 807, which addresses two major issues: (1) the retention of personnel records; and (2) the tolling of the statute of limitations while the Department of Fair Employment and Housing (“DFEH”) is investigating a complaint before it.

Effective, January 1, 2022, personnel records (for applicants and employees) must be retained for a minimum of four years. This time is extended if an employer has been notified a complaint has been filed with the Department of Fair Employment and Housing (“DFEH”). In those circumstances, related personnel records must be retained 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.

SB 807 also tolls the statute of limitations for matters while they are pending before the DFEH. Specifically, it specifies that statute of limitations will be tolled until either (1) the DFEH files a civil action; or (2) one year after the DFEH notifies the complainant it is closing its investigation. This tolling provision applies retroactively but does not revive already-lapsed claims.

Employers should review their policies to ensure they comply with this new law. Specifically, employers should ensure no personnel records are being disposed of early. If you have questions regarding SB 807, or how to comply with it, contact an employment attorney at Weintraub Tobin for guidance.