Workers' personnel files best kept closed
Published 08/5/05

A worker's personnel file is private and confidential and employers need to keep it as such. Generally, disclosure of a worker's personnel file should only occur to the worker unless the worker provides written consent to the employer to release the file to someone else.

Without the worker's consent to disclosure of her personnel file, it generally can only be disclosed through a legally compelled process.

By way of example, the worker may be a party to litigation upon which her opponent subpoenas her personnel records from the employer. The employer should then confirm with its attorney that the subpoena is valid on its face and that the worker's attorney has notice of the subpoena and the opportunity to dispute it in the opponent's Court prior to the disclosure.

If the subpoena was merely mailed to the employer then it is generally not valid since proper service of it on the employer was not made. Likewise, a certain witness fee must be paid. While the employer may not care about these details, the worker may care.

Similarly, a subpoena from a Massachusetts case may not be valid as served on a New Hampshire employer. There is a special procedure to subpoena New Hampshire deponents in a Massachusetts state court action and if that procedure has not been followed, the subpoena is invalid.

It is also possible that workers that are not parties to litigation may have their personnel files subpoenaed and without those workers having an attorney, the employer should consider with its attorney whether or not it should dispute the subpoena.

Since personnel files are private and confidential and the employer is responsible for creating those files, a court may find that the employer has sufficient legal standing to object to the turn over of those documents based upon the privacy interests of its workers or former workers weighed against whether the information sought is reasonably calculated to lead to admissible evidence in the lawsuit.

The employer may also have confidentiality concerns of its own to protect as to those personnel files.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.