On February 3, 2021, the California Department of Fair Employment and Housing (DFEH) updated its frequently asked questions (FAQs) to make clear that employers can seek an extension for reporting year 2020—known as a request for an “enforcement deferral period”—as to its newly enacted pay data reporting requirement that reports are otherwise due on March 31, 2021. The DFEH cited the novel nature of the reporting requirement for employers in 2021 and additional complications presented by the ongoing COVID-19 pandemic as justification for deferral requests. However, practical guidance as to the manner by which employers could seek enforcement deferral requests remained scant until recently.

On February 16, 2021, the DFEH released its “Request for Enforcement Deferral Period” online form. The form provides employers with information regarding how they can apply for an enforcement deferral. But, in an unfortunate blow to employers scrambling to comply with the brand-new reporting requirement, it appears the DFEH has taken a narrower approach to granting such requests for enforcement deferral than expected from the brief FAQ discussion.

Question 1. What is the deadline for filing a pay data report and is there a penalty for filing late?

Answer 1. Under Cal. Gov. Code Section 12999(a), the deadline for filing a pay data report with the DFEH is annually on March 31. Under Cal. Gov. Code Section 12999(g), if an employer subject to the reporting requirement fails to file its report by the March 31 deadline, the agency “may seek an order requiring the employer to comply with [the pay data reporting] requirements and shall be entitled to recover the costs associated with seeking the order for compliance.”

Q2. Can any employer request an enforcement deferral period? What is the length of deferral?

A2. As mentioned above, the DFEH has limited the grounds for requesting a deferral period. The DFEH identifies only three reasons for an employer’s inability to report by the March 31, 2021, deadline:

  • “[l]ost records due to flood, fire, or other natural disaster”;
  • “[s]evere economic hardship”; or
  • “[r]eporting requires technology or infrastructure changes.”

The DFEH’s reporting form includes the above three reasons in a drop-down menu, foreclosing the opportunity for a deferral request for those employers that fall outside of the three acceptable justifications. However, employers do have the opportunity to provide further context in the “Explanation” box. Employers granted such deferrals would have through April 30, 2021, to file reports with the DFEH.

Q3. How can employers request enforcement deferral periods from the DFEH?

A3. Employers must fill out the DFEH’s online request form before March 31, 2021, to request an enforcement deferral period from the DFEH, identifying one of the three accepted reasons for the request “and other required information.” The DFEH stated that the online form is the only means for submitting a request for an enforcement deferral period. Further, the DFEH stated that only an employer, and not any third party on its behalf, can submit a request to DFEH, “and any approved enforcement deferral period” will pertain only to the requesting employer.

Q4. Will employers be able to request enforcement deferral periods for future reporting years?

A4. The DFEH links its justification for granting limited enforcement deferral requests to the unprecedented COVID-19 pandemic and the fact that California’s pay data reporting requirement is brand new.

Based on current information from the DFEH, employers should not count on the DFEH to defer an order for compliance in the reporting years to come.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.