When should your company make personnel records available to third parties?

Personnel records should be treated as confidential information between the employer and the employee, and third parties should not be provided personnel records unless authorized by the employee, in writing, or as may be required by law or court order.

Although employees are ordinarily allowed by law or company policy to view and even copy their own personnel files, they should not be accorded automatic access to the personnel files of coworkers, even when they sue the company. To the contrary, a corporate defendant should make every effort to protect and preserve the privacy of its employees who are not parties to the lawsuit.

In this regard, the employer should not voluntarily release the contents of these files but should await service of a proper subpoena or request for production of documents. Corporate counsel may still wish to move for entry of a protective order before releasing copies of these files, requiring that the information be kept confidential and only used in connection with the litigation. Although many different types of protective orders can be entered, most address the following issues:

• Describe information subject to the protective order;

• Identify individuals permitted to review the information;

• Restrict individuals from using or disclosing the information, except in connection with the litigation; and

• Provide for a return of the information, and any copies or summaries thereof, upon conclusion of the litigation.

For particularly sensitive information, orders may contain provisions for the information to be sealed by the court clerk if filed with the court.

As for other third parties, any requests for information should be in writing and, unless the employee consents to release of the information (e.g. salary verification for mortgage application), should only be released as required by law or court order.

Most states regulate the exchange of personnel information with third parties. For state specific information, see State Laws.

Source:Employment Law Answer Book, Mark R. Filipp, James Ottavio Castagnera (Aspen Publishers).