PRIVACY RIGHTS IN AN EMPLOYEE’S PERSONNEL FILE

Is there a right to privacy in an employee’s personnel file? A recent Florida appellate court case Walker v. Rout, 2013 Fla.App. Lexis 6466 (Fla. 5th DCA 2013), analyzed this subject in depth. The court observed that personnel files undoubtedly contain private information. See, for example, Regan-Touhy v. Walgreen Co, 526 F.3d 641 (10th Cir. 2008), which explained that, while not categorically out of bounds, personnel files contain sensitive personal information, and trial courts are not unreasonable when being “cautious about ordering their entire contents disclosed willy-nilly.” In Walker, the employee’s whereabouts were unknown and therefore, he did not have the opportunity to personally assert a privacy objection. The court explained that the employee’s absence did not necessarily mean that such important non-party rights should not be considered, or that the right to privacy and the right to knowledge should not be weighed during the discovery process. When privacy rights are implicated, discovery should be narrowly tailored to provide access to discoverable information while safeguarding privacy rights.

The court observed that it was likely that the employee’s personnel file contained information about his compensation, benefits, pension, and the like which would not be relevant to the lawsuit, but would be highly intrusive to the employee’s privacy interests if disclosed. In contrast, any information regarding the employee’s training, competence, abilities, and disciplinary history may be relevant to the underlying action. Therefore, the appellate court in Walker concluded that the trial court erred when it allowed all of the contents in the personnel file to be disclosed without first conducting an in camera inspection to segregate the relevant documents which were discoverable from the irrelevant documents which were not. See, for example, Beverly Enters. Fla, Inc. v. Deutsch, 765 So.2d 778 (Fla. 5th DCA 2000).

An employer has no privacy rights in an employee’s personnel file. Although an employer lacks standing to assert its employee’s privacy rights in the employee’s personnel file, an employer has standing to oppose the production of private information within the file on the ground that the information was not relevant to the litigation. See, for example, Alterra Healthcare Corporation v. Estate of Shelley, 827 So.2d 936 (Fla. 2002).

Peter T. Mavrick represents businesses in commercial litigation, labor/employment law, and real property litigation. This article is not a substitute for legal advice tailored to a particular situation. Peter T. Mavrick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: peter@mavricklaw.com.