Attorneys at Griswold LaSalle are often asked by business owners: How long should I keep my employee records?
The answer is now: At least four (4) years as a result of California law, AB 9, which went into effect January 1, 2020. AB 9 implies such additional record keeping requirements for employers with respect to employee personnel files because of the additional time employees now have to file harassment, discrimination, retaliation or other actionable conduct.
One of the main purposes of the bill was to extend the time period to file a claim with California’s Department of Fair Employment and Housing (“DFEH”) for harassment, discrimination, retaliation or other actionable conduct from one year to three years. (California Government Code section 12960(e)) The employee then has one year from the date of filing the DFEH claim to file a civil lawsuit in California state court. (California Government Code section 12965(a).
The impact of AB 9 is that records concerning an employee or a specific incident which occurred up to four years ago may be sought in a harassment, discrimination or retaliation lawsuit. Employers are now encouraged to maintain such records for up to four years. Additionally, employers should implement and follow best practices with respect to documenting employee complaints, performance and termination decisions at or around the time of the event. Under California’s Labor Code, the burden typically is on the employer to maintain records. (See Labor Code section 1174) Employers, going forward, should keep personnel records from 2019 through 2023.
AB 9 specifies that it “shall not be interpreted to revive lapsed claims.” (AB 9 – Section 3) However, AB 9 may apply to existing claims that expire after January 1, 2020.