Subpoenaed for Employment Records? What Employers Must Disclose

Getting a subpoena for employee records can be scary for employers. You might be worried about disclosing private information or getting in trouble if you don’t comply. But there are laws about what you have to provide – and what you can keep confidential. This article will walk you through what to do if you get subpoenaed.

What are employment records?

Employment records are any data the company keeps about an employee’s work history. This includes stuff like:

• Personnel files – performance reviews, disciplinary actions, etc.
• Timesheets and payroll records
• Benefits enrollment forms
• Background check reports
• Attendance records
• Training certificates

Basically any document with information about someone’s employment. These records are super important for both employers and employees. Companies use them to:

• Prove there was a legal employment relationship
• Fight discrimination or harassment claims
• Make decisions about promotions, discipline, etc.

And workers can use records to:

• Get workers comp or unemployment
• Prove wrongful termination
• Verify employment for loans/housing applications

Why do people subpoena employment records?

There’s a few common reasons someone might subpoena an employee’s records:

• Lawsuits – If an employee sues the company, their lawyer will want records.
• Divorce cases – Spouses sometimes want income records.
• Workers comp – To prove a workplace injury happened.
• Background checks – For security clearances or new jobs.

Subpoenas can come from courts, lawyers, government agencies, etc. You have to take them seriously and respond on time.

What do employers have to disclose?

If you get a subpoena, you usually have to turn over any records covered by it. But there are some limits on what you need to provide:

Only records related to that employee

The subpoena should name a specific employee. You only have to give their records, not everyone’s.

Follow state laws

Some states restrict access to certain employment records like:

• Drug test results
• Psychological evaluations
• Criminal background checks

So check your state laws before disclosing protected info.

Notify the employee

You should tell the employee their records were subpoenaed if possible. This gives them a chance to fight it.

Redact info on other employees

If records mention other employees, redact their personal information before handing over documents.

How to respond to a subpoena

Here’s what to do step-by-step if you get a subpoena:

1. Notify the employee ASAP if you can.
2. Review the subpoena to see what records are requested.
3. Gather those records for that employee.
4. Redact references to other employees.
5. Check state laws to see if any records are protected.
6. Provide the records by the deadline.

You may need help from your company’s legal counsel too. Subpoenas can have tricky technical requirements about how records are delivered.

The most important thing is responding on time. You could be sanctioned if you miss the deadline. Even if you don’t have any responsive records, send a formal response saying that.

What if employees object?

Employees might ask you not to comply with the subpoena. But in most cases, you have to provide records unless there’s a specific legal exemption.

You can suggest the employee get their own lawyer to file a motion to quash the subpoena. This asks the court to cancel it. But you shouldn’t ignore a subpoena just because an employee doesn’t want you to comply.

Balance privacy with obligation

It can feel awkward disclosing employee records without their consent. You want to respect privacy as much as possible. But you also have to follow the law and comply with valid subpoenas.

Carefully review what’s being requested and consult counsel with any questions. With the right process, you can properly respond without excessively invading employee privacy.