It’s happened…the dreaded letter from an attorney with a request for a personnel file. What do you do? How much do you have to turn over? Do you have protection?
The first question you should ask is: Could this request also be for other reasons? There is only one way to know: contact the attorney’s office who made the request. Talk with them as long as you can remain calm, professional, and polite. If you don’t think you can pull that off, don’t make the call.
When you make this phone call, ask for specifics. If the attorney is requesting information because of pending action against the company, consult an attorney for advice. Proceed with caution; you do not have a legal obligation to produce all records. There are certain files that should never be included as part of the personnel file, such as medical and investigative files. Important to keep in mind, there are time limitations both in your favor and against; proceed with these limitations in mind. If time frames are in question, get legal advice.
If the attorney is representing the employee on matters separate from employment with the company, it will be worthwhile to determine what records are needed. Often, attorneys will send a boiler plate letter that asks for every single record in existence when they may just need one type of record. Clarify this with the attorney who is representing the employee. Keep in mind, though, that you have a legal obligation with a specified time frame to turn over records when an employee has requested them. Speaking of which, make sure that the attorney included an authorization from the employee to release the records to the attorney. If this isn’t included, ask the attorney for it before you release anything. Depending on the specifics, you may have a right to respond only after receiving a subpoena.
As always, be consistent with your approach. Consider implementing a company-wide policy that outlines how such requests will be handled. Be sure the policy is reflective of federal, state, and local law.