NO. 105. AN ACT RELATING TO A LIMITED EVIDENTIARY PRIVILEGE FOR EMPLOYMENT RECORDS.
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 12 V.S.A. § 1691a is added to read:
§ 1691a. PROCEDURE FOR PRODUCTION OF EMPLOYEE PERSONNEL
(a) Policy. It is the policy of this state that an employee's personnel records should not be discovered by a party in a civil action without first giving the employee notice and an opportunity to object to the discovery of the records.
(b) Definitions. As used in this section:
(1) "Civil action" means any action commenced pursuant to Rule 3 of the Vermont Rules of Civil Procedure except an action in which employment discrimination is alleged.
(2) "Employee" means an individual who is or was an employee of the employer within the meaning of Chapter 24 of the Internal Revenue Code of 1986.
(3) "Employer" has the meaning given such term in Section 3401(d) of the Internal Revenue Code of 1986 and includes the state or any political subdivision or instrumentality of the state.
(4) "Personnel record" means any written or electronic record relating to an employee, including:
(A) information regarding the employee's job description, compensation and employment benefits;
(B) hiring, evaluation, work habits, promotion and discipline records;
(C) employment records maintained in accordance with state and federal law;
(D) physical, medical and psychological condition; and
(E) personal finances.
(c) Notice to employee. A party in any civil action seeking the production of the personnel records of an employee in such action, shall notify the employee whose records are being sought. Upon request, pursuant to Rule 26 of the Vermont Rules of Civil Procedure, the employer shall furnish to the requesting party the name and last knownaddress of the employee whose records are specifically being sought for production for the purpose of giving such notice.
(d) Service of notice. The notice to the employee shall be served on the employee by first class mail at the employee's last known address at the time such disclosure is sought. Service shall be complete upon mailing of the notice.
(e) Contents of notice. The notice shall include a copy of the request and shall inform the employee:
(1) that a request for production of the employee's personnel records has been made;
(2) the name, address and telephone number of the party or attorney making the request;
(3) the name and address of the court in which the action is pending;
(4) the name of the employer to whom the request has been made; and
(5) an explanation of the employee's rights under subsection (f) of this section.
(f) Employee right to respond and object. Prior to the disclosure of the records to the requesting party, the employee whose records are being sought shall have 20 days after service of the notice to respond to the request. The response shall be filed with the court and may include an objection to the production of the records on the grounds that production of the records will cause the employee annoyance, embarrassment, oppression, undue burden or expense, or other grounds provided by law. A copy of the response shall be served on the requesting party.
(g) Employee right to be heard. Before ruling on a request for a personnel record, upon request the court shall give the employee whose record is being sought an opportunity to be heard.
(h) Protective order. If the court grants the party's request for production of the records of the employee, the court may limit discovery as provided for in Rule 26(c) of the Vermont Rules of Civil Procedure (protective order).
(i) No employee response or objection. The duty to produce personnel records shall be determined as provided by law without requiring the participation of the employee if:
(1) the employee does not respond to the notice by the requesting party within 20 days; or
(2) the employee notifies the requesting party in writing that he or she does not object to the production of the records.
(j) Employer's independent basis to resist production; employee's right to review and copy records. The provisions of this section shall not preclude an employer from asserting any independent basis to resist the production of personnel records as provided by law and shall not limit the right of the employee to review and copy his or her personnel records pursuant to law.
Approved: April 27, 1998