California Legislature Passes Bill Implementing New Recordkeeping Requirements for Sexual Harassment Claims (AB 1867)

On August 24, 2018, the California Legislature passed and sent to the Governor for approval a bill requiring employers with 50 or more employees to maintain documents involving claims of sexual harassment for the longer of five (5) years after termination of either the employee complaining or the alleged harasser. AB 1867 enhances the already strict obligation California imposes upon employers regarding anti-harassment training, as well as investigation and documentation of any complaints made. It is expected that the Governor will approve AB 1867.

Under the existing Fair Employment and Housing Act (“FEHA”), the Department of Fair Employment and Housing (“DFEH”) has developed a poster and information sheet regarding sexual harassment. The poster and any information sheet, as modified by the employer, must at a minimum describe the internal complaint process of the employer available to any employee who has a complaint, the legal remedies under FEHA, and the DFEH complaint process. It also requires employers to post the poster in an accessible area of the workplace, and either provide each employee with a copy of the information sheet or provide a specified minimum curriculum of sexual harassment education.

Existing FEHA law also requires that employers with 50 or more employees must provide at least two (2) hours of prescribed training and education regarding sexual harassment to all supervisory employees within six (6) months of their assumption of a supervisory position, and once every two (2) years thereafter. FEHA also obligates the employer to maintain and preserve records relating to a verified complaint under the DFEH complaint process until the proceedings, including appeals, are terminated.

AB 1867 will require that an employer with 50 or more employees maintain internal complaint records alleging sexual harassment for a minimum of five (5) years after termination or separation of either the complainant or any alleged harasser, whichever is longer. The bill also authorizes the DFEH to seek an order requiring an employer that violates this recordkeeping requirement to comply. Failure to maintain such records can also result in additional penalties.

The vast majority of employment laws applicable to California employees require maintenance of records related to any specific employee for only three (3) years after any termination or separation. Since AB 1867 requires maintenance of all records for a longer period, and the period is triggered by separation of either the complainant or alleged harasser, any records must be linked to both employees’ personnel records. Employers with 50 or more California employees must review and adjust current record retention policies and practices to ensure compliance with this enhanced recordkeeping requirement.

Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.

If you have any questions regarding California’s unique employment laws or these employment law updates, please contact Philip Toomey. Phil serves as Leech Tishman’s West Coast Business & Employment Client Relations Partner and practices in the firm’s Employment, Corporate, Litigation and Real Estate Practice Groups. Phil is based in the Leech Tishman’s El Segundo, CA office. He can be reached at 424.738.4400 or ptoomey@leechtishman.com.

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