Privacy Issues in the Workplace

C. A CCESS TO P ERSONNEL R ECORDS AND F ILES IN L ITIGATION

1. O VERVIEW

Requests for discovery of personnel files that occur during litigation raise issues of confidentiality and the employee’s constitutionally protected right to privacy due to the personal nature of the information contained in personnel files. Therefore, in determining whether to allow disclosure of requested personnel files, “the party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [citations omitted.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” 398 Thus, disclosure of an employee’s personnel file depends first on whether the material sought is relevant, and second, even if relevant, whether the policy in favor of discovery outweighs the individual’s right to privacy in the contents of the material sought. 399 California courts have generally concluded that the public interest in preserving confidential information outweighs the interest of a private litigant in obtaining the confidential information. 400

El Dorado Savings & Loan Assoc. v. Superior Court 401 Plaintiffs, former female employees of El Dorado Savings & Loan, sought discovery of personnel records of a male employee, Morris, who was not a party to the lawsuit. Plaintiffs alleged that during the course of their employment, they were discriminated against on the basis of gender and age. Plaintiffs contended that disclosure was necessary to the prosecution of their discrimination case, since Morris was the only male employee working in the same capacity as plaintiffs and had allegedly received benefits not afforded plaintiffs. The Court of Appeal denied plaintiffs’ discovery request for the disclosure of Morris’ entire personnel file. The Court stated that consideration should be given to whether the information could be obtained by less intrusive means, such as deposing the person. The Court further stated that if no less intrusive means are available, the judge should examine the personnel file and disclose only information he/she determines is relevant to the lawsuit.

Moreover, parties or witnesses also may not discuss confidential information maintained in personnel files that is not otherwise discoverable. For example, a person who has knowledge of the information may not be asked to orally disclose it at deposition or trial. 402 While it is not always clear in advance what would be allowable discovery, there are guidelines and procedures that can be followed depending on whom is making the discovery request and what information is requested.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 114