Can an Employer Release Payroll Records Without Permission From the Employee?

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There are an infinite number of reasons why someone might want payroll records on another individual. In most cases, the records are sought because the records may be relevant to ongoing litigation, such as in a divorce proceeding or child support hearing. Payroll records may also be requested in order to determine whether a party has the financial ability to pay a debt owed to the plaintiff. Regardless of the reason, payroll records are not easy to obtain without consent.

General Rule

  • As a general rule, an employee's personnel file, including wage information, is considered personal and cannot be released to a third party without the employee's consent. An employer may be able to release non-identifying payroll information, such as the total amount paid in payroll, or the average hourly wage of all employees, but specific payroll records that pertain to an individual cannot be released without consent or judicial intervention.

Subpoena

  • When a party has a legal need for records keep by a third party, the most common way to access those records is through the use of a subpoena. A subpoena is a legal document that orders a third party to appear and produce records in her possession or to deliver those records to a designated place within a designated amount of time. Subpoena procedures vary by jurisdiction. Often, an attorney has the authority to prepare and sign a subpoena; however, the authority behind the subpoena is that of the court. Other jurisdictions require the court itself to review the subpoena before deciding whether or not to issue it.

Motion to Quash

  • If the recipient of the subpoena, or the person whose records are the subject of the subpoena, feels that there is a legal reason to block the subpoena, she may file a motion to quash. A motion to quash basically asks the judge to cancel the subpoena. Most legal reasons available to quash a subpoena apply to the employer, such as the subpoena is too vague or the records sought are too voluminous. Although jurisdictions will vary, the most common reason that the subject of a subpoena for payroll records has to object is that the records are privileged or confidential. A judge will make the final decision after hearing arguments on the motion.

Court Order

  • A court may, on its own authority or motion, order a party to release or produce payroll records. A judge has broad authority to order any act or omission that is intended to serve the purpose of the court. If, for instance, a court feels that a party to an action is being less than forthcoming about his income, the court may take it upon itself to order the release of payroll records. Unlike a subpoena, challenging a direct court order is difficult. In most cases, the only way to challenge a judge's order is to bring the issue up on appeal after the case has concluded.

References

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