Cal-Peculiarities: How California Employment Law is Different 2022 Edition

Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 328 11. Employer Retention of Records California employers must retain certain records that are not addressed by federal law and certain records must be retained for periods longer than federal law requires. Listed below are peculiar California legal requirements. Recommended retention periods may be even longer than the legal requirements below because of federal laws and longer statutes of limitation. California retention requirements include  wage statements (pay stubs) (three years ), 1  job applicant records (two years), those records to include “data regarding the race, sex, and national origin of each applicant and for the job for which he or she applied, ” 2  help wanted ads (two years ) 3  wage (payroll) records (three years ) 4  child labor certificates (three years ) 5  personnel records (three years) , 6  employee health records (for hospitals, three years after termination of employment; 30 years for toxic exposure related records) , 7  pension and welfare plan information (two years) , 8  employee contracts (four years for written contracts), and  business records regarding total annual sales volume and goods purchased (two years ). 9 1 Lab. Code § 226(a). Although the legal requirement is three years, the California statute of limitations governing claims of unfair business practices (which can include unpaid wages) suggests a retention period of at least four years are prudent. Bus. & Prof. Code § 17208. 2 2 Cal. Code Regs § 11013 (b), (c) (DFEH regulations on recordkeeping and applicant data). “For recordkeeping purposes only, ‘applicant’ means any individual who files a formal application or, where an employer or other covered entity does not provide application forms, any individual who otherwise indicates to the employer or other covered entity a specific desire to be considered for employment. An individual who simply appears to make an informal inquiry or who files an unsolicited resume upon which no employment action is taken is not an applicant.” 2 Cal. Code Regs § 11013(b)(1). 3 2 Cal. Code Regs §11013(c) (requiring employers to keep for two years “[a]ny personnel or other employment records made or kept by any employer or other covered entity dealing with any employment practice and affecting any employment benefit of any applicant or employee.”) 4 Lab. Code § 1174(d); Lab. Code § 1197.5 (e) (both three years). California unemployment insurance regulations require retention of wage records for four years after a wage payment on which UI contributions are due. 22 Cal. Code Regs § 1085-2(c). 5 Lab. Code §§ 1174(d), 1299. 6 Lab. Code § 1198.5(c)(1) (three years after termination); 22 Cal. Code Regs § 70725 (hospitals must keep personnel files for three years after termination). 7 22 Cal. Code Regs § 70723(c) (hospital employee health records must be kept for three years). Medical records related to chemical and toxics exposure must be kept for duration of employment plus 30 years. 8 Cal. Code Regs § 3204(d)(1)(a). 8 2 Cal. Code Regs § 11013(c). 9 2 Cal. Code Regs § 11013(a) (California employers of 100 or more employees and certain apprenticeship programs must prepare a California Employer Information Report—or substitute a federal report such as an EEO-1—containing information about dollar volume of the business and retain the information for two years from the date of preparation).