Prior to February 2011, if you had ever served a subpoena requesting a copy of unemployment compensation transcripts and related filings from the Pennsylvania Department of Labor and Industry (“DOL”), you likely paid a fee and promptly received your documents. Since February 2011, the DOL has been refusing to produce those materials to claimants and employers due to amendments to the regulations implementing Pennsylvania’s Unemployment Compensation Law. At that time, the DOL, to comply with federal regulations in order to receive federal funds for unemployment compensation benefits, implemented its own provision providing for the confidentiality of unemployment compensation information.
The United States District Court for the Eastern District of Pennsylvania in a recent decision ordered the DOL to produce the subpoenaed unemployment compensation documents. During the plaintiff’s federal lawsuit alleging violations of Title VII and the Family Medical Leave Act, both the plaintiff and the defendant had subpoenaed documents related to the plaintiff’s unemployment compensation claim. The DOL refused to produce the documents, stating that the documents were privileged and must remain confidential to comply with federal requirements, encourage candor during unemployment compensation proceeding, and keep such proceedings simple and efficient. The Court on a motion to compel refused to recognize an unemployment insurance privilege and held that refusing to produce the documents did not promote sufficient interests to outweigh producing the documents and the DOL was ordered to produce the subpoenaed documents.
This case only addresses situations where the employer and the claimant are the same parties to both the federal lawsuit and to the unemployment compensation matter from which the subpoenaed documents are sought. Employers should be aware that access to the DOL documents may be a challenge in future litigation. Despite this current refusal by the DOL to produce subpoenaed documents, employers should continue to develop records at the unemployment compensation referee hearings that may be used in subsequent litigation involving the former employee.