Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.


by Jennifer Brown Shaw and Julia C. Melnicoe | The Daily Recorder | Sep 27, 2013

Even if your company is not involved in employment litigation, you may still receive a subpoena for an employee’s records. A subpoena might result from litigation by or against an employee versus a third party (such as a spouse, a party to an accident), a workers’ compensation matter, or between a current or former employee involved in a lawsuit with another employer.

When an employer receives a subpoena for employees records, the “custodian of records” (the person within your company responsible for maintaining such records) is obligated to produce the requested documents, or risk a court proceeding and possible monetary consequences. At the same time, employers have obligations to maintain their employees’ privacy. So how do employers determine when they should object on grounds of employee privacy? The answer depends on who is seeking the records, the purpose for obtaining the records, and whether the records sought belong to someone directly involved in litigation or a third party.

Employers Must Protect Employee Privacy

Employers have an ongoing obligation to assert the privacy interests of current and former employees. This means protecting the private information within your employees’ personnel, medical, and financial records – from social security numbers to disciplinary actions. Employers may be held liable for improperly disseminating private information without authorization.

That said, privacy protection is not absolute. Sometimes an employee’s privacy must give way to a competing interest. Earlier this year in County of Los Angeles v. Los Angeles County Employee Relations Commission, for example, the California Supreme Court allowed a union to obtain home addresses and telephone numbers for all county employees, whether union members or not. While the Court acknowledged that the non-union employees had a strong privacy interest, the Court held that interest was outweighed by the union’s duty to fairly communicate with all county employees.

Privacy Protections May Be Waived When the Subpoena Concerns a Party to a Lawsuit

When an employee brings a lawsuit, her right to privacy may be waived as to matters that otherwise might be private, but are at issue in the litigation. The defendant has the right to test the truth of a plaintiff’s allegations. Accordingly, a subpoena that seeks the records of a party to the lawsuit raises fewer privacy concerns than a subpoena for the personnel records of a third party.

For example, if your employee is involved in a lawsuit with her former employer, the former employer may issue a subpoena demanding records relating to your employee’s earnings or other personnel documents. These records may relate to the employee’s claims for lost wages or the former employer’s defenses. Accordingly, your employee may have waived her right to claim the information in her records is private.

When your business receives a subpoena seeking employment records, the subpoenaing party also must send a notice to the employee whose records are demanded. The subpoena served on your company must include proof that this notice was served on the employee (entitled a “Proof of Service of Notice to Consumer”). The employee has an opportunity to ask the court to void the subpoena via a “motion to quash.” If you receive a notice that the employee intends to move to quash the subpoena, you must not produce records until the dispute is resolved by agreement by all parties or by the court. If there is no motion and the date for complying has arrived, you may produce the records. However, you may wish to consult with your company’s attorneys before producing any particularly sensitive information.

Third Parties Have Stronger Privacy Claims

A subpoena seeking records of an employee who is not a party to the underlying litigation raises more significant privacy concerns. For example, a party to a lawsuit may seek employment records of a key witness. In El Dorado Savings & Loan v. Superior Court, a female employee sued the financial institution for sexual harassment. The employee issued a subpoena to her employer, seeking the entire personnel file of a male coworker whom she claimed was treated differently. The financial institution objected and refused to produce the personnel file on privacy grounds. The California Court of Appeal agreed that the coworker’s right to privacy trumped the plaintiff’s litigation-related interests.

Because third parties may assert privacy protection, employers should carefully review the deadlines cited in the subpoena. As stated, a subpoena must include proof that the employee was served with the requisite Notice to Consumer. But unlike employees who are parties to the lawsuit, a non-party employee is not required to file a motion to quash to prevent disclosure of his records. Instead, he may simply serve written objections. If your company receives objections (often contained within a short form entitled “Objection by Non-Party to Production of Records”), you must not produce documents until the dispute is resolved by agreement by all parties or by the court.

To Produce or Not to Produce

Employers served with a subpoena for an employee’s private records may find themselves in a Catch-22: refuse to comply with the subpoena and risk contempt, or comply and risk an invasion of privacy claim by an employee who didn’t authorize release of his records. In some situations, personnel files may contain information that would be potentially embarrassing or harmful if disclosed. But even routine records may contain financial information, as well as private information such as social security numbers, dates of birth, dependents, and the like.

To minimize the risk, check to ensure that the subpoenaing party has provided proof that the employee has been served with a Notice to Consumer. Employers with may wish to consult with competent counsel whether the subpoena appears in order (properly completed and served). When the employee’s lawsuit does not involve your company, it may be wise to confirm with the employee’s attorneys that they received the Notice to Consumer and do not intend to object.