Employers should not disclose information contained in a personnel file without being presented with either a release signed by the worker granting permission for the employer to disclose that information or a legally valid subpoena. Where there is a release or a legally valid subpoena, the employer should disclose only information specifically authorized through the release or subpoena. If the release or subpoena only pertains to documents, there should be no discussion or disclosure of other information about the worker.
Even if an employer is informed of a legal proceeding involving a worker such as a divorce or automobile personal injury case, that does not provide the other party to the litigation a legal right to access to the personnel file without a release signed by the worker or a legally valid subpoena.
New Hampshire employers generally should not comply with a Massachusetts state court subpoena requesting personnel file documents since, absent a specific procedure being followed, the mere subpoena from that Massachusetts state court case is not valid in New Hampshire. Likewise, a Massachusetts employer served with a New Hampshire state court subpoena, without anything more, is generally not obligated to comply with it unless a specific procedure, as set forth under Massachusetts law, is followed.
When in doubt, an employer should speak with legal counsel to determine the validity of any such subpoena. It is not uncommon for some lawyers to serve a subpoena out of state hoping they will get documents even though the subpoena is in reality not legally sufficient once it crosses state borders. Therefore, it is important for employers to be circumspect in dealing with subpoenas received relative to personnel files.
It is also a prudent policy to contact the worker or, if known, the worker’s legal counsel upon receipt of a subpoena to let her know you have received a subpoena. This ensures that the worker has notice of the subpoena and has had an opportunity to challenge it in court, if appropriate. Former workers have the same privacy rights in their personnel files and such information should be similarly protected.
In summary, workers have personal and private information contained within their personnel file and employers need to take steps to ensure that it is not disclosed absent either a worker’s consent through a written release or by subpoena or other legally compelled process.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].