Currently, Virginia employers have discretion whether to provide employees access to their employment records. However, as of July 1, 2019, an amendment to the Virginia Code will take effect requiring employers to provide copies of certain employment records to employees upon request.
Specifically, pursuant to Virginia Code Section 8.01-413.1.B:
Every employer shall, upon receipt of a written request from a current or former employee or employee’s attorney, furnish a copy of all records or papers retained by the employer in any format, reflecting (i) the employee’s dates of employment with the employer; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description and job title during the employment; and (iv) any injuries sustained by the employee during the course of the employment with the employer. Such records or papers shall be provided within 30 days of receipt of such a written request.
The employer has 30 days from receipt of such a request to provide copies of the records. If an employer cannot comply with the deadline, it must provide written notice of the reason for any delay and still produce the records within 30 days of providing the notice. The employer may charge the employee a reasonable fee for the cost of producing the employment records.
The statute contains an exception for personnel files that include a written statement from the employee’s physician or clinical psychologist indicating that providing the employee with the records may endanger the life or safety of the employee or another person. There is also an exception for records that reference another person and the employee’s access to those records may cause harm to the referenced person. Under these exceptions, the employer must still provide the records to the employee’s attorney or authorized insurer, rather than directly to the employee.
If an employer fails to comply with a request for employment records under this statute, the employee or his attorney can issue a subpoena for the documents. If the court decides the employer’s refusal to provide the records was willful, the employee may be awarded damages for all expenses incurred by the employee, including court costs and reasonable attorney’s fees.
Practical Counsel: What should employers do to remain in compliance with this new law?
- Update Employment Documentation: First, employers need to understand the scope of the new law and modify their recordkeeping policies. In this regard, employers are required to provide copies of all records relevant to the four (4) categories provided in the statute – NOT all records kept by the employer. For example, a performance review is not included within these 4 categories. So, employers should carefully draft employment documentation in consideration of whether it will be subject to mandatory employee disclosure. And, documents should be saved and organized within employee files in accordance to whether such document would be subject to disclosure.
- Update Handbooks and Policies: Second, Employers should consider updating employee handbooks and employment policies that relate to access to employment records to reflect the change. Specifically, if any policies discuss employment records as property of the employer with employer discretion as to whether to provide employment records upon request, the policy should be updated in accordance with the amendment.
- Designate Procedure: Finally, the employer should designate a person or department to handle employment records and record requests to ensure that requests for documents are complied with within the 30 day requirement.
For guidance regarding how this legislation affects your business, contact the employment law experts at General Counsel, PC today at 703-556-0411.