BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
SB 1465 S
Senator Kuehl B
As Introduced
Hearing Date: April 27, 2004 1
Code of Civil Procedure 4
KH 6
5
SUBJECT
Production of Evidence: Employment Records
DESCRIPTION
This bill would require that when a subpoena for documents
is sent to a labor union for records related to a current
or former member's employment, a notice must be sent to the
union member, just as when a subpoena for documents is sent
to an employer for records related to a current or former
employee's employment, a notice must be sent to the
employee.
BACKGROUND
Under existing law, the privacy of workers is protected by
the requirement that notice be given to a worker whose
employment records are subpoenaed from their current or
former employer. Such notice provides the worker the
opportunity to oppose and prevent the disclosure of
personal information.
However, existing law only requires notice to the worker
for employment records subpoenaed from an employer, not
from any other witness who might have records concerning a
worker's employment, such as a labor organization
representing the worker.
This bill would require notice to the worker when a
subpoena for records pertaining to the employment of the
(more)
SB 1465 (Kuehl)
Page 2
worker is served upon a labor organization representing the
worker.
CHANGES TO EXISTING LAW
Existing law requires that if a document subpoena for
records pertaining to the employment of an individual is
served on a current or former employer of an individual,
the subpoenaing party must either provide the witness with
written authorization signed by the employee or by his or
her attorney of record authorizing the release of the
records, or serve a "Notice to Consumer or Employee"
(mandatory Judicial Council Form 982(a)(15.5)) upon the
individual whose employment records have been subpoenaed.
[Code Civ. Proc. Sec 1985.6.]
Existing law allows an individual whose employment records
have been subpoenaed from his or her current or former
employer to file a motion to quash or modify the subpoena
(in the case of a party to the suit) or to serve written
objections on the requesting party and the current or
former employer (in the case of a non-party) to prevent the
disclosure of information protected by the individual's
right to privacy. [Code Civ. Proc. Secs. 1985.6(f) and
1987.1.]
This bill would require that the "Notice to Consumer or
Employee" also be served when a subpoena for documents
pertaining to an individual's employment is served upon a
labor organization that represents the individual.
COMMENT
1.Stated need for the bill
Co-sponsor Screen Actors Guild (SAG) states:
[U]nder current law, employees' privacy rights in
their confidential employment information are
protected by a simple but powerful mechanism: a
requirement that notice be given to the employee by
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Page 3
the subpoenaing party before confidential information
is requested under subpoena. This notice gives the
employee the opportunity to challenge the release of
information should the employee wish to do so.
Unfortunately, existing law [ ] narrowly defines
employment records so that only records in the actual
possession of the employer qualify. This leaves
millions of union-represented employees without equal
privacy protections, because those same records can be
subpoenaed from the union without any requirement to
notify the employee, and without a mechanism for the
employee to object. This shortcoming is problematic
for employees who work for multiple employers, as do
many of our members. In these cases the union - not
the individual employers - become a clearinghouse for
employment records and therefore a target for
subpoenas.
SB 1465 fixes the problem by including
union-maintained employment records within the
existing law covering employer-maintained employment
records. This will ensure those union members'
privacy rights are protected in the thousands of
subpoenas unions are required to respond to each year.
Co-sponsor Conference of Delegates of California Bar
Associations states:
In the case of the Screen Actors Guild (SAG), all
members receive their compensation through SAG, making
members vulnerable to subpoenas without notice,
therefore, preventing employees from seeking to
prevent disclosure of their information.
SB 1465 will clarify the intent of the Legislature,
protect employees, yet not place undue burdens on
parties seeking information.
In support of the bill, Consumer Attorneys of California
states:
The overall purpose of CCP 1985.6 is to protect an
employee's right to privacy and to provide a mechanism
to prevent disclosure of certain information. A labor
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organization will often maintain a file on its members
that includes copies of documents and information that
are routinely kept in an employer's file.
Consequently, under current CCP 1985.6 a party
seeking information on an employee could do an
"end-run" around the notice requirements by seeking
records from a labor organization. SB 1465 adds
important clarification to existing law.
2.This bill supports current public policy
The requirement that an employee receive notice of a
subpoena for records pertaining to his or her employment
is similar to the notice requirements of Code of Civil
Procedure Section 1985.3 regarding document subpoenas for
"consumer records." The purpose of the law is to protect
the consumer from "unreasonable violations" of his or her
"right to privacy." [ See Code Civ. Proc. Sec. 1987.1;
Sasson v. Katash (1983) 146 Cal.App.3d 119.]
The procedures for production, including time
requirements for notice to the employee and the
employee's opposition to the production of employment
records are almost identical to the procedures under Code
of Civil Procedure Section 1985.3 for production of
personal consumer records.
California Civil Discovery Practice (3rd Ed., CEB, 4.92)
advises attorneys:
Counsel faced with a subpoena for the production of a
client's employment records should review this statute
and consider filing a motion to quash the subpoena, or
at least request that the court conduct an in chambers
review before production to the subpoenaing party.
See Harris v. Superior Court (1992) 3 Cal.App.4th 661.
This bill will further the public policy of protecting
the worker's right to privacy by affording a worker the
opportunity to prevent disclosure of protected
employment-related information in the possession of the
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Page 5
worker's labor union.
3.Suggested author's amendments
Author's amendments will adopt the following amendments
recommended by Committee staff.
a. Code of Civil Procedure Sec. 1985.6(a)
Page 2, line 1: Strike out "representing" and insert
"that has represented or currently represents."
b. Code of Civil Procedure Sec. 1985.6(b)
Page 2, line 4: After "tecum." insert "'Employee'
also means any individual who is or has been
represented by a labor organization (as defined in
Section 1117 of the Labor Code) that is a witness
subject to a subpoena duces tecum."
These amendments clarify that just as the current notice
requirement applies to a subpoena to a current or former
employer, this bill would require notice for a subpoena
to a labor organization that currently represents or has
in the past represented the employee, and also that the
defined term "employee" includes an individual who was or
is represented by the labor organization witness, not
only employed by the union (as in performing work for the
union).
Support: Consumer Attorneys of California
Opposition:None Known
HISTORY
Source: Conference of Delegates of California Bar
Associations; Los Angeles County Bar Association;
Screen Actors Guild
Related Pending Legislation: AB 3081 (Assembly Committee
on Judiciary) also amends C.C.P. Sec.
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Page 6
1985.6, concerning two references to
other code sections, unrelated to SB
1465. Chaptering-out language will
be required if both bills pass. AB
3081 is awaiting assignment by the
Senate Rules Committee.
Prior Legislation: None Known
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