Employers often receive subpoenas demanding the records of a current or former employee, even if there is no pending litigation.

The current or former employee may be involved in litigation, and one of the parties needs documents that are in the employer’s possession. For example, a subpoena might result from litigation by or against an employee versus a third party (such as a spouse, or a party to an accident) or as a result of a workers’ compensation claim. In determining whether the requested documents should be produced, an employer should consider 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.

In short, although not a cause for alarm, subpoenas should be taken seriously.

General Privacy Concerns

Upon receiving a subpoena for employee records, the employer must produce the requested documents unless some exception applies. Failure to comply can result in a court proceeding, and even monetary sanctions.

That said, employers have a responsibility to protect employee privacy and refrain from improperly disseminating private information without authorization. Notably, this duty is not absolute. In certain cases, an employee’s privacy must give way to a competing interest. For example, prior to the Private Attorneys General Act (“PAGA”) reforms of last year, one court found that a former employee who sued Marshall’s in a wage and hour lawsuit was entitled to obtain contact information for other employees who worked during the time period relevant to the claims. Although the California Supreme Court acknowledged that the request would intrude on the employees’ privacy, the Court determined that the intrusion was outweighed by the need to contact other employees as part of the PAGA “representative” action.

Waiver of Privacy Protections When the Subpoena Concerns a Party to a Lawsuit

When an employee is involved in a lawsuit, their right to privacy may be waived as to matters that otherwise might be private but are at issue in the litigation. The rationale is that the defendant is entitled to test the truth of a plaintiff’s allegations. For instance, if a current employee is in a car accident with a third party and the employee claims $10,000 in lost wages as a result, that third party may obtain wage records to ensure the employee’s alleged wage loss is accurate. In other words, the employee may have waived the right to claim their wage records are private.

Third Parties Have Stronger Privacy Claims

A subpoena seeking employment 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 claim that a former employee engaged in harassment at his new company. That party may 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, which may override the plaintiff’s litigation-related interests.

To Produce or Not to Produce?

Employers who are served with a subpoena for an employee’s private records, which could contain information that is potentially embarrassing or harmful if disclosed, 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 the release of their records.

To minimize risk and before producing the documents, the employer should look for a “proof of service” stating how and when the subpoena was “served” (i.e., delivered to the employee). The employer also should carefully review the deadlines cited in the subpoena and confirm with the employee or their attorney that they received a “Notice to Consumer” and do not intend to move to void the subpoena (called a “motion to quash”).

A non-party employee also may serve written objections to the subpoena (often contained within a short form entitled “Objection by Non-Party to Production of Records”). An employer must not send any records until the expiration of the period of time listed in the Notice to Consumer for the employee to object or move to quash. If the employee does object or move to quash the subpoena, the employer should not produce any records until the dispute is resolved by agreement of all parties or the court.

If you are concerned that the subpoena is seeking highly confidential records to which the subpoenaing party may not be entitled, contact your organization’s legal counsel for assistance. Legal counsel also can help if the Notice to Consumer or proof of service is missing altogether, or you are unsure whether the subpoena was prepared or served properly on your business.

The bottom line is that you should never ignore a subpoena. However, there are important principles at play, and you must take them seriously.