When a county DSS is investigating a possible welfare fraud, can it require an employer to hand over the suspect's employment information without consent, subpoena, or court order?

Plain-English summary

Inspector General Bryan E. Beatty asked whether employers could give employee information to social services agencies for public-assistance eligibility decisions or suspected overpayments, and whether any law required disclosure without the employee's consent, a subpoena, or a court order.

Private employers. The AG said there was “nothing to prevent a private sector employer” from releasing employee information to a county DSS, except where an employment contract or collective bargaining agreement prohibited it. The opinion says the federal Privacy Act applies only to federal agencies and their subcontractors.

State, county, and city employers. Employee name, original employment date, and current salary were among the information the opinion identified as public record. The opinion also said these employers could not disclose confidential personnel information to assist a criminal prosecution. In certain circumstances, such as maintaining public confidence or departmental integrity, the employer could choose to release confidential file information under the cited statutes.

No compulsory disclosure rule identified. The AG answered the second question directly: “There is no federal or State law that requires employers to disclose personal information about an employee to a social services agency.”

Currency note

This opinion was issued in 1998. Check the personnel-record statutes now in force before deciding whether a current request may be answered or must be answered.

What this means for you

Private employers receiving a DSS request

Under the opinion's analysis, a private employer may release the information voluntarily unless its employment contract or collective bargaining agreement prohibits disclosure. The opinion identifies no federal or state rule requiring the employer to answer a DSS request.

State, county, and city personnel offices

The opinion identifies name, original employment date, and current salary as public information. For confidential personnel information, check the applicable statute and the purpose of disclosure; the opinion specifically identifies a bar on disclosure to assist a criminal prosecution and describes limited employer discretion in other circumstances.

Social services investigators

The opinion draws a distinction between information an employer may voluntarily supply and information the law requires it to supply. It identifies no federal or state law compelling an employer to disclose personal employee information to DSS.

Common questions

Q: Does a private employer need an employee's consent before voluntarily answering DSS?
A: The opinion identifies no general consent requirement for private employers. It says an employment contract or collective bargaining agreement may prohibit disclosure.

Q: Does the federal Privacy Act bar a private employer from giving DSS employee information?
A: No. The opinion says that Act applies only to federal agencies and their subcontractors.

Q: Which public-employee information did the AG call public record?
A: The opinion lists, among other things, name, original employment date, and current salary for state, county, and city employees.

Q: Can a public employer release confidential personnel information to help a criminal prosecution?
A: The AG said statutes prohibit that purpose of disclosure. The opinion also describes limited discretionary release in other circumstances under the applicable personnel statutes.

Q: Must an employer give DSS the employee's personal information merely because DSS asks?
A: No. The AG found no federal or state law requiring an employer to disclose it to a social services agency.

Background and statutory framework

The opinion distinguishes private employers from state, county, and city employers. For public employees it cites personnel statutes including N.C.G.S. § 126-23, § 153A-98, and § 160A-168 for public information; § 126-24(5), § 153A-98(c)(5), and § 160A-168(c)(5) for the criminal-prosecution restriction; and related provisions allowing employer discretion in specified circumstances. Its answer to the compulsory-disclosure question is limited to whether federal or state law requires the employer to provide personal information to a social services agency.

Citations

• G.S. § 126-22 et seq.
• N.C.G.S. § 126-23
• N.C.G.S. § 126-24(5)
• § 153A-98(c)(5)
• § 160A-168(c)(5)
• 5 U.S.C. § 552a(b)

Source

• Landing page: https://ncdoj.gov/opinions/employer-disclosure-of-employee-information/

Original opinion text

December 1, 1998

Bryan E. Beatty
Inspector General
North Carolina Department of Justice
P.O. Box 629
Raleigh, N.C. 27602

Re: Advisory Opinion: Employer Disclosure of Employee Information; Departments of Social Services in Welfare Fraud Investigations; G.S. § 126-22 et seq.; G.S. § 153A-98; G.S. § 160A-68; 5 U.S.C. § 552a(b), Privacy Act of 1974

Dear Mr. Beatty:

This letter is in response to the questions you posed in your memorandum of September 23, 1998. The first question you have asked is whether there are any legal impediments which prohibit employers from disclosing personal information about their employees to social services agencies when the agencies request the information in connection with the determination of a person's eligibility for public assistance or the investigation of a suspected public assistance overpayment.

The answer to the question depends upon the type of employer. There is nothing to prevent a private sector employer from releasing to a county department of social services information relative to an employee, except in situations in which an employment contract or collective bargaining agreement prohibits such disclosure. The Privacy Act of 1974 only applies to federal agencies and their subcontractors. 5 U.S.C. § 552a(b).

With respect to State, county and city employers, information concerning, among other things, name, date of original employment and current salary of employees is a matter of public record. See N.C.G.S. § 126-23; § 153A-98; § 160A-168, respectively. These government employers are prohibited by statute from disclosing confidential information for the purpose of assisting in a criminal prosecution. See N.C.G.S. § 126-24(5); § 153A-98(c)(5); § 160A-168(c)(5), respectively. However, under certain circumstances, such as maintaining public confidence or the integrity of the department, confidential information contained in personnel files may be released in the discretion of the employer. See N.C.G.S. § 126-24; § 153A-98(c)(7); § 160A-168(c)(7), respectively.

The second question you ask is whether, in the absence of consent from the employee, there is any legal authority, other than a valid subpoena or court order, which requires employers to disclose personal information about an employee to a social services agency. There is no federal or State law that requires employers to disclose personal information about an employee to a social services agency.

We trust this fully answers your questions. Please do not hesitate to contact us if we can be of further assistance to you.

signed by:

Ann Reed
Senior Deputy Attorney General

Belinda A. Smith
Assistant Attorney General