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r44michael
06-16-2010, 09:21 PM
I learned lately (Jan 2010) that my ex-employer (from 2006-2007) released my personnel file records to the Dept of Labor without my knowledge.
Some of the current employees of that ex-employer complained about unfair salary and benefits to the DOL, but I was not one of those who complained and my name was not mentioned by the complainants.
Is it legal for an employer to release the ex-employees records withot their permission?
As an FYI , the DOL did not subpoena my records, the employer produced them voluntarily.[/SIZE]

CatBert
06-16-2010, 10:20 PM
Part of the DOL's investigation process is to sometimes allow the employer to do what is called a "self-audit" during this time the employer is required by law to comply with all requests of the DOL investigator. By not disclosing the information requested the employer is easily a target for penalties and fines.

All in all, sorry, but the employer did nothing wrong.

r44michael
06-16-2010, 10:46 PM
The DOL did not request the record, I reviewed the case file my self and spoke to the commmisoner who investigated the case, the emplyer produced the record voluntarily there were no requests from the DOL.
Could you please provide the labor code citation for the self-audit you mention?

Pattymd
06-17-2010, 12:53 AM
Not everything is in the Labor Code.

But something in this whole situation doesn't make sense. The DLSE (if that's who you mean by DOL) would not generally investigate "unfair" compensation complaints. That would be done in California by the DFEH (Dept. of Fair Employment and Housing), IF the complaints are alleged to be because of a protected characteristic under California discrimination law. The DLSE investigates complaints of violation of wage and hour law, not discimination law.

But let's just say that some agency did an investigation about some complaint about "unfair" compensation; perhaps your records were being used by the employer in their case that they were NOT being "unfair". That would be a perfectly good reason for the employer to provide some of your records, so that they could be compared and contrasted with the records of the complainants.

So what do you want to happen here? EVEN if it were against the law to voluntary release certain information about you (and I'm not at all certain that it was), what damages have you suffered from it? It occurred 3 years ago.

cbg
06-17-2010, 07:02 AM
And the bottom line is, personnel files are the company's property, not yours. There does not have to be a law giving the employer permission to submit their property to a government agency during an audit or investigation. The fact that no law prohibits them from doing so is enough to make it legal.

There is no "privacy law" that was violated here.

angel_28
06-17-2010, 08:16 AM
Agree, we have produced employee files(current and former) as part of various investigation on a voluntary basis. We have nothing to hide. What is in a file is company property, you have a right to review it but not to have it.

r44michael
06-17-2010, 11:01 AM
To Pattymd:
You are right, it is the Retaliation Complaint Unit of the DLSE, and the complaint was about discrimination. The DLSE in California does investigate discrimination complaints
Please see here: http://www.dir.ca.gov/dlse/dlseDiscrimination.html
Please note that the incident happened in Jan 2010.
The DLSE have informed me that they have not requested my file and that any information contained has become public record.

To cbg & angel_28:
Employment records in CA are confidential and not public records, ie members of the public cannot just walk in and request review of your employees’ files. If your company released its employees’ records for an ongoing investigation it must have done so on a confidential basis.
CA prohibits release of employment records by subpoena without the employees consent. CA laws also limit the info an employer can release about their employees in case of a background check.
In my situation the release of my employment record to DLSE have made a public record of ALL my personal information?

cbg
06-17-2010, 11:13 AM
And a member of the public did not request them. An authorized agent of an agency that is entitled to see the records did.

And so that we're on the same page, and because there is a LOT of misinformation about this floating around, what restrictions do you understand the state of CA to put on employers regarding background checks?

r44michael
06-17-2010, 11:33 AM
TO CBG:

The issue here is not that the DLSE reviewed my file, but rather that my personal info became public record.
As for your question, the DLSE explains that an employer can only provde the dates of start and end of employment, and the job title. According to DLSE these resrtictions are listed under Labor Code section 1050 & Civil Code section 1785.

angel_28
06-17-2010, 12:04 PM
Labor code 1050 prohibits misrepresentation of facts to prevent employment. As long as information provided on background checks are truthful employers can give out any information.
I very often inform prospective employers of failed drug tests, job abandonment etc. What you state is just a myth.

Pattymd
06-17-2010, 12:10 PM
This is Labor Code Section 1050 in its entirety:

1050. Any person, or agent or officer thereof, who, after having
discharged an employee from the service of such person or after an
employee has voluntarily left such service, by any misrepresentation
prevents or attempts to prevent the former employee from obtaining
employment, is guilty of a misdemeanor.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=lab&group=01001-02000&file=1050-1057

Please cite the specific section of the CA Civil Code you believe prohibits the employer from releasing your information to the DLSE.
Here is an article by the Privacy Rights Clearinghouse regarding Section 1785:
http://www.privacyrights.org/ar/callaw.htm

And my question is STILL, what do you expect to happen now?

cbg
06-17-2010, 12:34 PM
There is no state in the US that limits the employer to dates of employment. That is a myth. A widely believed myth, but a myth nonetheless.

if you believe otherwise, please provide a link to the actual law that says so. The ones you have currently quoted do not say what you believe them to say.

As far as the rest goes, since evidently nothing anyone here can say will convince you that no law was violated, feel free to contact an attorney and tell him you want to sue the DLSE.

DAW
06-17-2010, 01:33 PM
FYI, I got interested and took a look at the CA-DLSE manual. I found exactly 4 privacy rules, all of which are narrowly worded, and none of which prohibit the employer from giving contents of the personal file to CA-DLSE.

There is a lot of CA law, and I am prepared to believe that there is some CA law that I have not heard off, and that is not discussed in the CA-DLSE manual or the CA-DLSE factsheets. But the absence of evidence that such a law exists is hardly proof that it must exist. So, agreed with CBG. The burden of proof is on the person who claims that a law has been violated to cite the law in question. Not trying to be an a** here, but I have done this type of thing in CA for thirty years now, have researched privacy laws a bunch of times, and have never found the type of law being cited.

I would actually be thrilled if the OP was correct (and could actually cite the law in question), because it would make a good article. But every time I have researched so called privacy rights before, there turned out to be not a whole lot of "there" there. Privacy rules tend to be very narrowly worded.

r44michael
06-18-2010, 10:29 PM
Thanks to everyone who took the time to write.
My information about the law is very limited, the laws I quoted above were provided by a DLSE commissoner I spoke to about this situation. I never read them personally. It was he who told me that the release of my personnel file was wrong and that I should speak to an attorney.
My current HR confirm that the release of my personnel file to DLSE was wrong.

To CBG: My current HR says that CA laws limit background checks to employment dates and job titles only. I will check and get back to you about the specific law section. In the meantime I suggest you read the link posted by Pattymd.

To Pattymd : what should happen now? I do not know, I am concerned that my personal info is out there for every one to see and I am more concerned after I spoke to DLSE and my HR.
I started this thread in order to know what I should do?

cbg
06-18-2010, 11:25 PM
I have read the link posted by Patty, which does NOT say what you claim. Have you?

I will be very interested to see the law that limits employers to dates of employment. Do tell us how long it takes your current HR to find it. And don't forget to post the link so we can all see.

Pattymd
06-19-2010, 05:48 AM
Why do you say your "information is out there for everyone to see"? Where is it and who is "everyone"?

angel_28
06-20-2010, 09:43 AM
I would love to see the law as well, but I will not hold my breath.
Still nothing wrong with providing your employee file for investigations.

CatBert
06-20-2010, 06:23 PM
As far as the rest goes, since evidently nothing anyone here can say will convince you that no law was violated, feel free to contact an attorney and tell him you want to sue the DLSE.

This is exactly why I backed out of responding to this one early on...call it intuition...;)

r44michael
06-23-2010, 11:01 PM
I was able to speak to an attorney today who confirmed what the DLSE commissioner said.
In California, employment records are confidential and cannot be made public record.
The lawyer says that the disclosure of any information contained in a personnel file must be done only with the consent of the employee, except for law enforcement investigations.
I am told that the law is CCP 1985.

Pattymd
06-24-2010, 02:12 AM
You still haven't told us WHERE this is, what database, who can see it, HOW it is "public". But hey, I don't care any more. You want to try to sue the state, go ahead.

CatBert
06-24-2010, 05:31 AM
You still haven't told us WHERE this is, what database, who can see it, HOW it is "public". But hey, I don't care any more. You want to try to sue the state, go ahead.

I am so relieved to hear that others feel the same way I do. This OP seems to be looking for a rant/rave section where common sense and fact don't need to be considered!

Pattymd
06-24-2010, 06:03 AM
I am so relieved to hear that others feel the same way I do. This OP seems to be looking for a rant/rave section where common sense and fact don't need to be considered!

Yep, I want to know EXACTLY where this information is so I, the "public" can go check this guy out. :rolleyes:

cbg
06-24-2010, 07:31 AM
Notice that he still hasn't provided any backup for his claim that employers are limited to dates of employment on reference checks. Which is an entirely different question. And is the one I asked him to provide.

CatBert
06-24-2010, 07:47 AM
Obviously just another OP looking for the rants and raves section of the site...

Not suprised to hear of a lawyer saying he has a chance...the lawyer gets paid win or lose!

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