Privacy Issues in the Workplace

1. E MPLOYEE R EQUESTS

California Labor Code section 1198.5 gives employees the right to inspect their personnel files.

Government Code section 3306.5 gives public safety officers the right to inspect their personnel files.

Firefighters also have the right to inspect their personnel file during usual business hours and when on paid status pursuant to Government Code section 3256.5. California Government Code section 31011 gives county employees the right to inspect their files. Under CalOSHA, it appears that whenever an employee who is exposed to toxic or harmful substances requests access to medical or “exposure” records, the employer shall assure that access is provided in a reasonable time, place and manner, but in no event later than 15 days after the request for access is made. 248 a. State Tribunals With the exception of workers’ compensation proceedings, California law requires that consumers and employees be given notice and an opportunity to object if certain records about them, including but not limited to medical and employment records, are subpoenaed. 249 A party subpoenaing medical records must notify the consumer whose records are being sought at least five days prior to service of the subpoena upon the records custodian. Additionally, the notice to the consumer must be served on the consumer at least 10 days prior to the date of production. 250 The party subpoenaing records must also serve the responding party (i.e., the employer) with proof that the employee has been given notice of the subpoena. Unless the employer receives proof that the employee has been properly notified at least five days prior to service of the subpoena on the employer, the employer should not produce any records. b. Federal Tribunals The Federal Rules of Civil Procedure do not impose the same notice requirements. Upon receipt of a subpoena for records, an employer must serve written objections to the subpoena on the grounds that the records are confidential within 14 days of being served with the subpoena, or prior to the date for compliance if the compliance date is less than 14 days. The objections must specify the grounds for the objections and describe the confidential records sufficiently to enable the subpoenaing party to move to compel their production. 251 Having served objections to the subpoena, the employer is not obligated to produce the records unless and until ordered to do so by the court. In the alternative, the employer may also move to quash the subpoena on the same grounds. 252 2. R ESPONDING TO S UBPOENAS An employer may also contest a subpoena, by filing a motion to quash the subpoena.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 78