Recent developments at the federal government level have generated increasing questions regarding employer’s requirements to cooperate with law enforcement at the local level. Law enforcement may have a variety of reasons for contacting or visiting a place of employment. Sometimes law enforcement is actively involved in the investigation of crimes, or may be working with immigration or other local, state, or federal government agencies to enforce laws. Other times, law enforcement may be seeking information on employees for emergency purposes, or simply making courtesy calls at local businesses for community relations as part of community-based policing programs.
Regardless the reason for the visit, there are some basic guidelines that employers should be aware of when working with law enforcement:
- Upon contact, always request the name, badge number, and to see the badge of the law enforcement agents, and record this information for possible future needs. If the law enforcement visit is unexpected, or if the person presenting as law enforcement seems suspicious, call the law enforcement agency the person claims to be from to confirm the person is in fact a law enforcement agent before allowing the person access to private areas, personnel, information, or documents. While law enforcement impersonators are rare, it does occasionally happen.
- Managers and supervisors should be tasked with any and all communications and cooperation with law enforcement. This is to ensure compliance with employer policies and procedures, minimize the chance of inadvertent or unauthorized disclosure of information, and because managers and supervisors will be more familiar with and trained on employer practices and procedures for law enforcement contact.
- If law enforcement presents a valid warrant or subpoena signed by a judge and issued by a court, then full compliance with the terms of the warrant or subpoena is required. If time permits, the warrant or subpoena should be provided to human resources or a corporate officer for responding. Employers will also, of course, want to contact their legal counsel in such a situation. Failure to comply with a valid warrant or subpoena may create a risk for criminal charges for interfering with a law enforcement investigation and/or violation of a court order. When complying with a valid warrant or subpoena, the employer should be careful to comply specifically with what is required in the warrant or sought in the subpoena—nothing more and nothing less.
- If law enforcement arrives without a valid warrant or subpoena signed by a judge and issued by a court, then the request is presumably being made as a “courtesy request,” and the manager or supervisor should confirm whether it is a “courtesy request” or a court order. Employers are free to refuse responding to a “courtesy request,” and are free to request the law enforcement agents return with a valid warrant or subpoena prior to providing the requested information or things. “Courtesy requests” may require protection of or withholding confidential business information. Additionally, employee privacy in personal information may need to be maintained and employee documents may need to be withheld. Furthermore, some states have laws that require employee personal information be maintained as private and confidential. Additionally, some federal and state laws may restrict access to certain information, such as Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA) medical information, I-9 documents and supporting information, biometric data, genetic information, and other types of personal information. Collective bargaining agreements or employer policies may also require or suggest privacy to employee records. Employers should exercise caution when responding to courtesy requests from law enforcement for these reasons.
- If law enforcement arrives without a valid warrant or subpoena, but it is an emergency situation in which release of employee personal information is for the employee’s personal benefit, then the employer should consider providing the requested information. In doing so, the manager or supervisor speaking with the law enforcement agent should attempt to confirm the emergency situation exists, e.g. police need to contact an employee’s spouse or parent due to employee being in a car accident, or an employee is the subject of a missing persons report and law enforcement is seeking information to assist in locating the person.
Our employment team is here to help if your company faces a situation involving law enforcement executing a warrant, conducting a search of the premises, and in creating policies and procedures for law enforcement contact.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
