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.

Responding to Subpoenas for Employee Records

by Jennifer Brown Shaw and Julia Melnicoe Insel | The Daily Recorder | March 3, 2022

Even if your company is not involved in litigation, you still may receive a subpoena for a current or former employee’s records. Receiving a subpoena is not necessarily cause for alarm. It simply means that someone needs documents that may be in your company’s possession. For example, an employee’s spouse may subpoena wage records for a divorce proceeding. Subpoenas for records also commonly are issued in workers’ compensation claims.

You still must take a subpoena seriously, however. If you do not timely respond or produce all of the requested documents, your company risks being required to appear in a court proceeding (or even monetary sanctions). Your obligation to respond is complicated further by your competing obligation as an employer to protect employee privacy.

So, how do you know whether you should comply with a subpoena? 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.

Check for the “Notice to Consumer”

Before you start gathering the requested employment records, you must ensure the subpoenaing party has issued a “Notice to Consumer” (the “Notice”). The Notice gives the employee a period of time to object (often contained within a short form entitled “Objection by Non-Party to Production of Records”) or ask the court to void the subpoena (called a “motion to quash”) prior to the date of production. You also must look for the “proof of service” showing how and when the Notice was “served” (i.e., delivered to the employee).

You must not send any records until the period of time in the Notice for the employee to object or move to quash has expired. If the employee does object or move to quash the subpoena, do not produce any records until the dispute is resolved by agreement of all parties or by the court.

If the Notice or proof of service is missing altogether, or you are unsure whether the subpoena was prepared or served properly on your business, you should consult with your company’s legal counsel for further guidance.

Consider Potential Privacy Concerns

Even if an employee does not object or file a motion to quash, employers have an independent obligation to protect private personnel, medical, and financial information of current and former employees. That said, privacy protection is not absolute. Sometimes, an employee’s privacy must give way to a competing interest. For example, in Williams v. Superior Court in 2017, a former employee of Marshall’s retail stores was entitled to obtain basic contact information for other Marshall’s employees in a two-year period as part of a wage and hour lawsuit under the Private Attorneys General Act (“PAGA”). Although the California Supreme Court acknowledged that the request would invade employee privacy, the slight invasion was outweighed by the need to contact other employees who would be included within a PAGA “representative” action.

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

When an employee is involved in a lawsuit, their right to privacy may be waived as to matters that are raised during litigation. For example, if your current employee is in a car accident with a third party and claims they lost $10,000 in wages as a result, that third party has the right to obtain wage records to ensure the employee’s alleged wage loss is accurate. In other words, your employee may have waived the right to claim their relevant wage records are private.

Third Parties Have Stronger Privacy Claims

A subpoena seeking private information of an employee who is not a party to the underlying litigation raises more significant privacy concerns. For example, a third party may claim your former employee engaged in harassment at his new company, and subpoena your business for records of harassment complaints involving your former employee. Producing those records would reveal private information not only about your former employee, but also about the employees who complained about him. Those employees have a significant privacy interest in protecting their complaints from a public lawsuit.

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 did not authorize release of their records. In some situations, personnel files may contain information that potentially would be embarrassing or harmful if disclosed. And, even routine records may contain financial or other private information, such as social security numbers, dates of birth, dependents, and the like.

To minimize risk, it may be wise to confirm with the employee or their attorney that they received the Notice to Consumer and do not intend to object or move to quash before producing documents. If you are concerned that the subpoena is seeking highly confidential records to which the subpoenaing party may not be entitled, contact your company’s legal counsel for assistance.