Employee Files

[HRAppliances]

What is the name of your state? Florida

I was told that no one was allowed access to an employee's files unless there was a court ordered subpoena. A gentlemen would like to have access to a previous employee's file for security purposes - for the Dept. of Defense. He has a release signed by the ex-employee. The HR book says nothing is to be released without a subpoena. Who is right?

Thank you -
Jennifer

 

[HomeGuru]

What is the name of your state? Florida

I was told that no one was allowed access to an employee's files unless there was a court ordered subpoena. A gentlemen would like to have access to a previous employee's file for security purposes - for the Dept. of Defense. He has a release signed by the ex-employee. The HR book says nothing is to be released without a subpoena. Who is right?

Thank you -
Jennifer

**A: follow the HR book.

 

[cbg]

There is nothing in the law that says you have to have a subpoena before anyone can access an employee file. But there are nonetheless good and valid reasons why such files should be kept confidential, and it is within the rights of the employer to establish such a policy. What's more, the law does not say that you have to give anyone access, even with a release from the employee, and you could be terminated for violating the policy, whether there is a law saying that you can't show the file or not. So I agree with HG - follow the policy.

 

[Beth3]

What's the HR Book? Your company policy manual? If it says company policy is that nobody is granted access to those files without a subpoena, then follow company policy. The DOD doesn't have special priviledges by virtue of being a government agency.

I once had a judge threaten me over the phone to have me arrested if I didn't release information to a sheriff. Issue a subpoena for the information, your honor, and I'll be happy to comply. Until then, you're just John Q. Public.

 

[HomeGuru]

What's the HR Book? Your company policy manual? If it says company policy is that nobody is granted access to those files without a subpoena, then follow company policy. The DOD doesn't have special priviledges by virtue of being a government agency.

I once had a judge threaten me over the phone to have me arrested if I didn't release information to a sheriff. Issue a subpoena for the information, your honor, and I'll be happy to comply. Until then, you're just John Q. Public.

**A: I liked that story. I would have said "Until then Judge, you're just John Q. Idiot"

 

[HRAppliances]

Thank you all for your advice.

Let me clear that up a bit - the book that the recommendation came from was an HR guidebook that you can buy at any store, not an company policy manual. There isn't anything in the company policy that dictates procedures on employee files. The office manager uses the HR guidebook when something isn't specific in the company policy manual.

Jennifer

 

[Beth3]

He was an idiot - and worse. Eventually he was disrobed and disbarred. The man was totally out of control in the courtroom (more than once he humiliared and berated rape victims on the stand) and was also found to have engaged in multiple incidents of sexual harassment/assault against female employees at the courthouse. He was a real piece of work and then some.

My one and only contact with the man occurred long before this all came out. In fact I was brand new to HR and didn't know if the judge was actually going to send someone over to arrest me or not but I knew for certain that violating company policy would get me fired so that's what I opted for.

 

[HomeGuru]

Thank you all for your advice.

Let me clear that up a bit - the book that the recommendation came from was an HR guidebook that you can buy at any store, not an company policy manual. There isn't anything in the company policy that dictates procedures on employee files. The office manager uses the HR guidebook when something isn't specific in the company policy manual.

Jennifer

**A: what the F? Why are you asking the question? Are you HR, the DOD, the ex-employee............?

 

[Beth3]

Jennifer, then absent any unique circumstances, I see nothing wrong with allowing the DOD investigator review the file - in your presence. Checking employment records is SOP when certain security clearances are required and I've had officers from various branches of the military and FBI agents show up from time to time with a signed authorization to take a look at a personnel file. It's no big deal.

 

[cbg]

Well, if the guidebook is saying that UNDER THE LAW you have to have a subpoena, it's wrong, unless it's state specific and there's something in Florida regulations that we don't have in the other 49 states.

But if it's saying that it's a good idea not to release employee files to a third party without a subpoena, then I agree with it.

Law or not, you don't have any obligation to do so, with or without a release from the employee, regardless of whether it's a Federal agency looking for the file, and there are some very good reasons not to release it.

I say, follow the book. I also say you should probably put together a set of policies and procedures that includes such information.

 

[cbg]

I see that Beth and I are differing as to whether you should permit it or not. My reason for saying no, is that you should be striving for consistancy in how you handle such things, and if you've been using the book as a company manual, which it appears you have, in my opinion you should continue to do so until you have your own set of policies to go by.

However, as long as you realize that you are setting precedent by allowing it in these circumstances, you're not breaking any laws if you go ahead.

 

[HRAppliances]

Thank you all for your responses, even you Mr. Guru (and for your information, I am in HR, but answer to the Office Manager who was not clear as we don't have a specific policy in place).

We realize that we need a policy in place regarding employee files - and many other things as well. That is why we come here - to learn the few things we aren't certain of. The DOD was a nice old man and was a bit surprised when we asked for a court order. Since he provided ID and produced the previous employee's signature on a release form, we consented to his request. We are in the process of updating the company policy and will be sure to include this information.

Thank you again for your help.

Jennifer

 

[HomeGuru]

Thank you all for your responses, even you Mr. Guru (and for your information, I am in HR, but answer to the Office Manager who was not clear as we don't have a specific policy in place).

We realize that we need a policy in place regarding employee files - and many other things as well. That is why we come here - to learn the few things we aren't certain of. The DOD was a nice old man and was a bit surprised when we asked for a court order. Since he provided ID and produced the previous employee's signature on a release form, we consented to his request. We are in the process of updating the company policy and will be sure to include this information.

Thank you again for your help.

Jennifer

**A: your company did nothing wrong in this instance.

 

[Beth3]

I don't disagree with you per se, cbg, but I don't see this as a big precedent-setting situation. Just because an investigator from the DOD shows up and they allow him access doesn't mean they have to allow the next person who shows up the same.

I have always significantly restricted access to employee files but just haven't had any problems allowing a gov't agent to review a file for security purposes, provided they have a written authorization from the employee. Plus I always sit in the room while they do it. It's usually takes all of five minutes. Now if they sent a really attractive investigator or agent, I might find a reason to stretch it out to 15 minutes.

HRAppliances, the bottom line here is it's up to you. Those are employer owned records - you may do with them as you wish.

 

[cbg]

I don't have strong feelings one way or the other either, Beth. My only experience with something like this was when we had an attorney send a letter (no subpoena attached) informing us that we were to send the employee file of a former employee to him. We understood from the letter that it had to do with a w/c case. No one, including the owner (who had bought the company three years after this employee had left/quit/been terminated (I don't remember which any more) remembered her but her file indicated that she'd been a high maintenance employee. It also wasn't clear if this was her attorney or if the attorney looking for the file was on the opposite side of the case, whatever the case was. *Our* attorney, when consulted, told us to hold out for a subpoena. We did. We never got one. We never sent the file. We never heard another word about it.