disclosure of employee personel records

staunton

my firm represents a private employer in a national orgin discrimination suit. the claim is weak but plaintiff is seeking the employee records of several past and present employees to establish a disparate treament claim.. interestly the state supreme court of my jurisdiction has not analized this in the context of private employers/ private employees. any good case law you could provide me to provide protection from disclosure or at a minimum limited disclosure would be appreciated.

LFernandes

Go to [url]http://findlaw.com[/url]. You'll be able to search on various cases.

Lori B

Illinois has a statute on point, the Personnel Record Review Act. Perhaps you could look into West's annotations to see cases that interpret it for argument ideas.

One could also argue by analogy that all the recent privacy legislation on a federal basis could have applicability to personnel files.

Finally, under no circumstances would I allow a production to include any sort of medical records. My reading of ADA and its accompanying regs is that third parties shouldn't get that absent a court order. A subpoena does not rise to that level.

Regardless of case law on point, I think it is understood across the board that such files contain sensitive info. I wouldn't produce anything unless the other side agrees to a confidential protective order for what they get and what they will do with it.

Good luck.

Don D

>Finally, under no circumstances would I allow a production to include
>any sort of medical records. My reading of ADA and its accompanying
>regs is that third parties shouldn't get that absent a court order. A
>subpoena does not rise to that level.

That's a good reminder Lori. One that hadn't occured to me exactly in this context. On the other hand, I often have to produce medical absence and FMLA type records in unemployment hearings in order to win those cases. Any cautionary words there?

Lori B

Tricky one.

I too produce attendance records, regardless of reason, when the need arises for a UI hearing. If the dates pertain to a medical or FMLA type reason, I might simply call it that without specifics. For ex, to me it is one thing to just call it FMLA leave and quite another to provide the specific reason, doc's note, cert of health care provider and all that other sensitive stuff that supports the need for the leave.

In the case of a subpoena for docs in other litigation, I would produce attendance records but probably just classify the time off in general categories like "vacation," "leave," etc. We wouldn't turn over the FMLA request unless that was a specific point of contention in the litigation and we had the protective order in place.

Keep in mind that asking the atty to provide a protective order does not have to be an adversarial move. It is advisable in many cases to agree to a joint protective order that outlines confidentiality expectations, etc. - especially if the records really are relevant and you know the court will just order it anyway.