How To Legally Obtain Employment Records Through Subpoenas

Employment records are any collection of data maintained by employers regarding their workers' employment history. They often contain personal identifiable information (PII) along with a chronological record of employment dates, attendance records, and other work-related details.

You’re probably asking yourself just how important these records can be. Put simply, it’s impossible to overstate their importance. For employers, these records serve as legal documentation and proof of the employment relationship. They can be used to fight back against claims of workplace discrimination, retaliation, harassment, and wrongful termination. Employers also use these records to track employee performance to make informed decisions.

For workers, these records also serve essential purposes. For instance, what if you’re injured at work? It’s your employment records that provide documentation proving your workers’ comp eligibility. This is also true for those seeking unemployment and other benefits. However, this information can prove invaluable in other instances as well. That’s why it’s vital for eDiscovery professionals to understand the proper procedure for how to subpoena employment records. 

Why Are Proper Legal Procedures Crucial for Subpoenaing Records?

A subpoena for employment records can serve a variety of purposes. These legal orders require employers to produce an employee’s employment records for use in legal proceedings. This can include litigation and administrative hearings. These records can be used by courts, agencies, and parties to a lawsuit to support employment-related claims. However, following appropriate legal procedures is crucial regardless of the underlying focus of a subpoena. 

Now, do you know how to subpoena employment records properly? If not, this guide is the right place for you to be. Following the right procedures ensures that everything remains fair and legal. It also protects the rights of both the employer and employee — including the confidentiality of personal and employment-related information.

Without going this route, you might just find yourself on the wrong end of legal penalties or an unenforceable subpoena. And let’s be honest, that’s embarrassing for anyone. 

Reasons for Subpoenaing Employment Records

We’ve already touched base on a few of the reasons for subpoenaing employment records. Claims of discrimination, retaliation, and other wrongful workplace actions will likely rely heavily on this documentation. However, these serious legal claims are far from the only reasons a company may receive a request for employee records. Here are just a few of the common situations when legal teams find themselves working with these documents:

• Legal proceedings: In addition to discrimination and harassment claims, employee record subpoenas could be used in other litigation. This can include wage and hour disputes, allegations of wrongful termination, and claims related to trade secrets and confidentiality. Such records can also be subpoenaed as part of government investigations. 
• New hire background checks: Many professionals learning how to subpoena employment records are doing so in order to conduct background investigations. Companies often receive subpoenas as part of the background check process for potential employees. This may be a requirement under the law or company policy. 
• Internal investigations: Another common reason for subpoenaing employment records relates directly to internal investigations. Companies often investigate employee misconduct or violations in this way. Of course, third parties may seek similar information for related purposes. 
• Benefits investigations: Companies frequently receive subpoenas related to unemployment and workers' compensation claims. These records can verify a worker's eligibility to receive benefits along with their employment history and work-related injuries.

Of course, these are just the most common reasons for subpoenaing employment records. Companies could also receive a request for employment records for matters indirectly related to workplace issues. For instance, an unfortunate processor has no doubt received a subpoena for employee records in a divorce case.

How To Draft And Serve A Subpoena For Employment Records

Whether you need to subpoena former employee records or you’re involved in litigation against the employee themselves, knowing how to draft and serve a subpoena is a necessity. Let’s start with what information you need to include in a subpoena: 

• Case information (e.g., Case number, name of case, court, etc.) 
• Recipient’s information responding to subpoenas (i.e., Name and address of subpoenaed party) 
• Specific documents or categories of documents (e.g., Personnel files, performance evaluations, etc.) 
• Timeframe, typically as a date range or more general (e.g., "All records related to...") 
• Compliance date and location 
• Contact information of issuing attorney

Once drafted, these subpoenas must be properly served on the employer. This includes filling out the proper forms, making a copy of the subpoena, and choosing an appropriate service manner (e.g., personal, mail, or substituted service). This might seem like a lengthy process, but trust us when we tell you that it’s far from over. 

The employer must then comply with the subpoena or take steps to quash it. If they move forward with providing information, it’s important that they understand local laws. For instance, with a subpoena for employment records in California, certain types of records are entitled to additional protections. This could include PII or medical records. 

Now, if you’re still a little confused on how to subpoena employment records — or what such requests may look like when you’re tasked with responding to subpoenas — here’s an example: 

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES

Plaintiff: Jane Smith Defendant: XYZ Corporation

CASE NO.: 123456

SUBPOENA FOR EMPLOYMENT RECORDS

TO: XYZ Corporation 123 Main Street Los Angeles, CA 90001

YOU ARE HEREBY COMMANDED to produce and permit inspection and copying of the following documents and records:

All employment records relating to the employment of Jane Smith, including but not limited to:

1. Personnel file, including any records related to her application, hiring, promotion, compensation, benefits, and termination.
2. Performance evaluations, including any records related to her job performance, attendance, punctuality, and conduct.
3. Disciplinary records, including any records related to any investigations, warnings, suspensions, or terminations.
4. Payroll records, including any records related to her compensation, hours worked, and overtime.
5. Training records, including any records related to any training or certifications received by Jane Smith.

YOU ARE FURTHER COMMANDED to produce the above-described documents and records on or before May 31, 2023 at the following address:

ABC Law Firm 456 Oak Street, Suite 200 Los Angeles, CA 90001

This subpoena is issued pursuant to California Code of Civil Procedure section 1985.3. Failure to comply with this subpoena may result in the imposition of sanctions, including monetary penalties and an order to pay reasonable attorney's fees and costs.

DATED: April 30, 2023

John Doe, Attorney for Plaintiff

More than anything, this sample subpoena of employment records goes to show how important it is to understand the process. If you don’t know how to subpoena employment records properly, there’s a good chance your request won’t secure the needed information. 

Legal Considerations

There are various legal considerations to account for when dealing with employment subpoenas. Some of the most important involve confidentiality and privacy concerns. For instance, the accidental disclosure of sensitive personal information — such as medical data and Social Security numbers — can be a serious breach of privacy. Improper handling of these subpoenas could also expose trade secrets and violate privacy rights and the expected protection of privileged information.

When someone is learning how to subpoena employment records, it’s also important for them to realize that not everything is sunshine and unicorns. You can send these subpoenas all day, but an employer has the right to object to the request. They can do this based on an broad scope — attorney-client privilege, protection of trade secrets, and violation of privacy rights. Once they've asserted such an objection, their response can take various forms. These include motions to quash, written objections and responses, and negotiation and compromise.

However, employer objections may be the least of your concerns if other legal considerations are overlooked. For instance, failing to follow proper procedures can result in legal sanctions, contempt of court, financial damages, and even adverse inference during litigation. It’s also important to understand legal nuances based on location. For instance, have you ever asked, “Can someone accept a subpoena on my behalf?” The answer is typically “no,” but in California, a subpoenaed individual can authorize a third party to do exactly this. 

Conclusion

Throughout this guide on how to subpoena employment records, you’ve seen everything from a sample employment subpoena to a list of possible penalties for overlooking legal considerations. However, the most important takeaway is the fact that it’s becoming almost humanly impossible to issue and respond to these subpoenas while meeting all the necessary legal obligations. This is even more true now as our lives cross further into massive data overload.

But fear not, you don’t have to handle these issues manually or pay a fortune to your outside counsel to do so. With discovery tools like Reveal, it becomes much easier to respond to employment record subpoenas quickly and easily.

Perhaps you need to automatically identify and redact personal identifiable information, or maybe you could benefit from applying global redactions to entire projects. Heck, maybe your issue is needing to store a massive amount of information — without raising costs — while you figure out how to move forward. The right eDiscovery software can meet these and many other needs.