Wage records may be needed for a variety of legal reasons. The most common reasons are to determine a debtor's income in a civil lawsuit or to determine a parent's income for the purpose of determining child support payments. Although you may ask for income information from the employee directly through the discovery process, if you feel that you actual need wage records from the employer then you must obtain them through the use of a subpoena.
Research the laws in your state before you begin. Pay particular attention to which forms are required to be completed along with the subpoena, whether the employee must be given notice first and whether the court is required to approve the subpoena before you may issue it. State laws can be located on state court or legislature websites, at a law school library or at a local library.
Obtain the name and address of the "custodian of records" for the employer. Most companies have an employee who is in charge of keeping payroll records for the company. That individual is known as the "custodian of records." A subpoena must be served on the custodian of records at the proper address. A call to the employer should be sufficient to obtain the information.
Locate a subpoena form, notice of subpoena and any other forms required in your state. State laws will vary, but in most cases at least the actual subpoena as well as a notice of subpoena must be completed. The notice of subpoena is sent to the subject of the subpoena, or the person whose wage records you are requesting. Many courts have subpoena forms that you may use.
Complete the required forms. Fill in the information needed, such as the name of the custodian of records, address and a description of what records you are requesting and where to deliver them. Make at least three copies of each form. You will keep one, provide one to the court and the employee and serve one on the employer.
File the subpoena with the court or have it notarized. Some states allow a subpoena to be filed without court approval by simply having it notarized. Other states require the court to approve the subpoena first. In states where the court must approve the subpoena, you may only need the clerk to file stamp the form or the judge may need to review it first.
Serve the subpoena. If the employee, or subject of the records, is required to receive notice first and an opportunity to object then you must serve her with the notice before you can serve the actual subpoena. State laws will also vary with regard to how the subpoena can be served. Some states allow a disinterested party to serve the subpoena, while others require a licensed process server or service by certified mail.
Even if your state allows service by a disinterested person, you may wish to have the subpoena delivered by a process server or certified mail to avoid any future disputes regarding service. A subpoena for records may have different names in different states, such as "Third-party Subpoena" or "Business Record Subpoena."
The employee has the right to contest the subpoena by filing a motion to quash. If the employee files a motion to quash, the court will determine whether you have the legal right to the records.
- The employee has the right to contest the subpoena by filing a motion to quash. If the employee files a motion to quash, the court will determine whether you have the legal right to the records.
- Even if your state allows service by a disinterested person, you may wish to have the subpoena delivered by a process server or certified mail to avoid any future disputes regarding service.
- A subpoena for records may have different names in different states, such as "Third-party Subpoena" or "Business Record Subpoena."