The Necessity of Employment Record Retention for Employers & Employees in California

retaining employment records

In order for an employer to be compliant with all federal and state labor laws, the employer is required to keep accurate and up to date documentation of all employment records. Government agencies rely on these records to enforce labor laws, so they established a minimum amount of time that employment records must be retained. The FLSA requires an employer to “make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records.” 29 USC § 211(c)

The Federal Labor Standards Act (FLSA)

The FLSA requires an employer to retain the following files for period of at least 3 years from the last date of entry:

  • Payroll records, including each employee’s name, address, occupation, hours worked each day and week, wages paid and date of payment, amounts earned as straight-time and overtime, and deductions;
  • Plans, trusts, and collective bargaining agreements;
  • Employee notices, and
  • Sales and purchase records. 29 CFR § 516.5

California’s SB 807 – Extended Record Retention

On September 23, 2021, California passed SB 807, which now requires employers in California to retain employment records for at least 4 years from the time the records were first created, or from the date the employment action was taken. If a complaint is filed against an employer, there may be addition time requirements for retaining those records.

Employer’s Burden of Proof in Wage Disputes

Under both federal and state law, the employer bears the larger burden of proof when wage disputes arise. After an employee, through their own testimony, has proven that there is sufficient evidence that they were not paid for work performed, the employer bears the burden of proving that the employee was properly compensated. If an employer does not have the adequate records to prove that the employee was properly compensated, the default is to side with the employee.

Employee Wage Statements

Employees are entitled to an accurate wage statement that allows them to easily determine the following:

  • The employer’s name and address
  • Gross wages/net wages paid
  • The amount of deductions
  • Hourly pay rate
  • Number of hours worked
  • Employee’s name
  • Last 4 of employee’s social security number or EIN

Legal Consequences of Record Denial in California

Employers are required to provide employees with all of their payroll records upon request. Failing to provide these records within 21 days of request could subject the employer to fines, civil suit, and all reasonable attorney’s fees.

If you have any questions regarding record retention and your rights as an employee, please contact us. At TONG LAW, our employment attorneys are experienced at helping employees enforce their rights.

Author Bio

Vincent Tong

Vincent Tong is the CEO and Managing Partner of TONG LAW, a business and employment law firm located in Oakland, CA. Vincent is a fierce advocate for employees facing discrimination and wrongful termination. With several successful jury trial victories and favorable settlements, he has earned a strong reputation for delivering exceptional results for his clients.

In addition, Vincent provides invaluable counsel to businesses, guiding them on critical matters such as formation and governance, regulatory compliance, and protection of intellectual property assets. His depth of experience allows him to anticipate risks, devise strategies to avoid legal pitfalls, and empower clients to pursue their goals confidently.

Vincent currently serves as the 2021 President of the Board of Directors for the Alameda County Bar Association and sits on the Executive Board for the California Employment Lawyers Association. Recognized for outstanding skills and client dedication, he has consecutively earned the Super Lawyers’ Rising Star honor since 2015, reserved for the top 2.5% of attorneys. He also received the Distinguished Service Award for New Attorney from the Alameda County Bar Association in 2016. He is licensed to practice before all California state courts and the United States District Court for the Northern and Central Districts of California.

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