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Can an employer request tax, bank records for benefits paperwork?

By Elaine Varelas
August 2, 2009

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Q. I work for a large, private employer in the healthcare field. Recently, we were informed that we will have to verify all our dependents for benefits eligibility. The listed documentation includes tax returns and bank statements. Is it legal and appropriate for an employer to demand access to private documents, especially when law enforcement officials need a warrant for the same access? Of course, employees can choose not to comply, but that could cost them healthcare coverage.

A. Proving your identity and protecting your identity is more challenging because of the virtual world, and advances in printer, copier, and Web technology. I recently saw an ad “requesting a Social Security number and certified transcripts to ensure the accuracy of all data provided by candidates.’’ Authenticity of data will continue to be an issue for employees and employers, and developing a method to accommodate requests that will provide you with benefits, while protecting your privacy will be needed.

Benefits eligibility involves the employee, employer, the insurer - and at times various government entities, all with different needs for information. To review your issue, I consulted attorney Steven Weatherhead at Bello Black & Welsh LLP. Weatherhead, who represents employers in all aspects of employment law, says: “Although some jurisdictions (most notably Massachusetts and San Francisco) effectively penalize employers for not providing a minimum level of health insurance benefits, employers currently are not legally required to offer health insurance to employees.’’ (That may change with the Obama administration’s proposed overhaul of the nation’s healthcare system.)

“Accordingly, employers can impose conditions on eligibility for health insurance benefits. While they cannot obtain certain information without your consent, they may condition further receipt of benefits on your providing evidence of eligibility.’’

Law enforcement officials similarly could obtain such information with your consent. Absent consent, however, and unlike private employers, law enforcement officials need a warrant because they are government agents and therefore bound by the Fourth Amendment of the Constitution.

When asked for any kind of private information, consider the purpose. In this case, what is it the employer is trying to verify? In many situations you might be asked for demographic information for continued solicitation, and it is acceptable to say no. Often the way you are asked seems part of the verification process, but does every store really need your e-mail address and phone number?

Weatherhead considers your employer’s request broad, and tax returns and bank statements may not reveal the presence or identity of dependents. He notes that your employer’s request likely is being driven by the insurance provider, which wants to ensure that it is not being defrauded.

Find an alternative. You could offer to present other documents that would evidence dependents, such as a birth certificate or marriage license. Or you could provide the requested documents and ask that the employer not make or retain a copy, or you could provide a copy with highly sensitive information (such as bank account numbers) blacked out.

Elaine Varelas is managing partner at Keystone Partners, a career management firm in Boston.