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  1. #1
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    Post Can an Employer Share an Employee's Personal Information with a Consultant

    My question involves labor and employment law for the state of: California

    I've been handling the employee's files for safekeeping the moment I received their completed application, with I-9, w-4, birth dates, background check results, SSN. The company hired an outside consultant to create or reorganize the company's procedures, the consultant was requesting ALL employee info. Can I provide these to that third party?

  2. #2
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    I don't know what your legal repercussions would be but frankly I have my doubts about your consultant. HR process is pretty cut and dry without having to see such particulars about any particular employee. Second, I'd not allow access to any of my business records without strict confidentiality rules written into the contract.

  3. #3
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    I've been hired on numerous occasions by employers in Canada and the US as a consultant tasked with re-vamping their employment policies, procedures and processes. To do much of this work effectively, I did need (and received) access to employee files - to see contracts, offer letters, demographics (age and gender mainly), and any precedent-setting documents that might be in some of the files. In addition, I needed to see what was/wasn't being filed to determine if the filing process itself required updating to legal and/or best practice standards.

    So I can see some very good reasons why this particular consultant needs to see the employee files. There are no legal repercussions to this in the US. (There are some in Canada but they can be overruled by a contract, and anyway it doesn't matter here because the OP is in the US.) This is not a doubtful situation, it is legal, normal and happens all the time.

    (And of course I always signed a confidentiality agreement before starting any of these consulting projects.)

  4. #4
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    Quote Quoting eerelations
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    There are no legal repercussions to this in the US.
    I think that’s overstating it. There may be legal consequences in the U.S. The particular information to be disclosed matters, as does and what state and local laws apply.

    The extent to which an employer may share medical information about an employee is restricted by the federal Americans with Disabilities Act (ADA). An employer is restricted by the Fair Credit Reporting Act (FCRA) from disclosing any consumer report information it obtained on employees. Consumer report information includes not only credit reports but also background investigations. Certain information relating to any national security clearances of an employee may also be protected and not subject to disclosure to third parties.

    The extent to which other information may be shared varies by state. For example, Illinois law prohibits disclosure to third parties of “a disciplinary report, letter of reprimand, or other disciplinary action” unless notice of that disclosure is provided to the employee. Michigan and California law (and probably some other states, too) prohibit, with some exceptions, disclosure of employee’s Social Security numbers (SSNs). I won’t go through all the various laws here, but suffice to say that there are some limitations in some states regarding what employee information may be disclosed to third parties that employers must know and ensure they follow. Employers that have employees in several states need to know the rules that apply to their employees in each of those states.

    And, finally, even where no statute exists to expressly protect employee information, much of what is in a personnel file would be regarded as confidential and intentional or negligent release of that information that causes the employee harm may subject the employer to a civil lawsuit for damages. This is why employers who use consultants that need access to employee information need to check that those consultants will safeguard that information and enter into nondisclosure/confidentiality agreements.

    So while employers generally may share much of their employee information with a consultant, they must take great care to know what limits may apply and to ensure that the consultant will not misuse any of the personnel information that the consultant obtains.

  5. #5
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    Quote Quoting Taxing Matters
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    So while employers generally may share much of their employee information with a consultant, they must take great care to know what limits may apply and to ensure that the consultant will not misuse any of the personnel information that the consultant obtains.
    And that's why a solid contract with confidentiality provisions is such a good idea.

  6. #6
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    Thumbs up Re: Can an Employer Share an Employee's Personal Information with a Consultant

    Quote Quoting eerelations
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    And that's why a solid contract with confidentiality provisions is such a good idea.
    Thank you, fully noted. Our company have signed confidentiality agreements with all the employees that were hired. I can send to the my boss the confidentiality agreement for the consultant to sign.

    Also, I am being instructed by the consultant to add few provisions in a (blank) contract for future use for facilities that we work with. I told the consultant that the lawyer has to do that as it is a legal document that was being adjusted by few provisions. The consultant replied that it doesn't need a lawyer to adjust it and instructed me to do it. I told my boss about it & that I was not comfortable to add anything on the legal document and was still instructed to do so. Being not comfortable of the whole thing, I forwarded the blank contract to the consultant and said 'please feel free to add', I received the adjusted copy of the contract right after. Was I in the wrong here or did the right thing?

  7. #7
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    You do what your boss tells you to do. The consultant is not your boss, so if the consultant tells you to do something you're not comfortable with, don't flat out refuse, just ask your boss what to do. If your boss tells you to do whatever the consultant asks you to do, then you do whatever the consultant asks you to do.

    Regarding additions to contracts, many consultants of this type (like me) are qualified to write/change contract verbiage. Your consultant may be one of these.

  8. #8
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    Quote Quoting eerelations
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    If your boss tells you to do whatever the consultant asks you to do, then you do whatever the consultant asks you to do.
    If the boss tells you to do something that is illegal for you to do, however, you cannot violate the law just because the boss tells you to do it. If adding the contract language would amount to the unauthorized practice of law in that state then it would be illegal for the employee to do it, notwithstanding that the boss told the employee to do it. An individual consultant may certainly add contract language to his/her own contracts with clients without a problem because individuals are always free to represent themselves in legal matters (even when it might not be wise to do so). But an employee adding contract language for his employer may indeed be considered the practice of law and without a license as an attorney the employee may violate that state’s laws against the unauthorized practice of law by doing it. States differ to the extent that practice of law requirements would extend to this situation. It is in part this kind of problem that companies have in house lawyers to do stuff like drafting contracts.

  9. #9
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    Default Re: Can an Employer Share an Employee's Personal Information with a Consultant

    If the boss tells OP to do something illegal, and OP does it because he/she doesn't know it's illegal then it's on the boss, not OP. While many illegal acts are obviously so (like embezzling, fraud and so on), this most definitely isn't obviously illegal to the average person (especially given that it in fact may not actually be illegal).

    So I stand by my original advice - when in doubt about whether or not something is illegal, do what your boss tells you to do, and if it turns out the boss is wrong, the boss will be responsible.

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