In most civil actions, a subpoena for employment records must contain an affidavit stating that the employee received notice of the subpoena.1 Anyone who subpoenas employment records must comply with these rules:

• If the subpoena notice is issued by mail to the custodian of records (the employer), the date the subpoena specifies for producing the employment records cannot be fewer than 10 days from the date the subpoena is issued. If the subpoena is served on the custodian of records (the employer) in person, the subpoena must be served five days prior to the date stated for the production of the records.2
• The party issuing the subpoena must provide notice of the subpoena to the employee whose records are being subpoenaed. The employee must receive a copy of the subpoena and a copy of the affidavit that supports the issuance of the subpoena.
• The subpoena can be served by mail to the employee’s last known address or to the employee’s attorney of record.
• The employer (custodian of records) must receive the subpoena and a copy of the affidavit that supports the subpoena’s issuance. Alternatively, the employer can accept a release for the records, signed by the employee.
• Every copy of the subpoena and affidavit served on the employee or his/her attorney must be accompanied by a notice, in a typeface that calls attention to the notice, indicating that:
• Employment records about the employee are being sought from the witness (employer) named on the subpoena
• The employment records can be protected by a right of privacy
• If the employee objects to the witness furnishing the records to the party seeking the records, the employee must file papers with the court before the date specified on the subpoena for producing the records
• If the subpoenaing party does not agree in writing to cancel or limit the subpoena, the employer should consult an attorney about the employee’s interest in protecting his/her rights of privacy

If you receive subpoenas for employment records that do not comply with the rules stated above, do not respond until you have obtained advice from legal counsel as to the validity of the subpoena.

This law does not apply to certain state and local agencies, nor to certain Department of Industrial Relations (DIR) and workers’ compensation proceedings.

1.Civ. Code sec. 1985.6