Employers in Virginia need to be aware of a new legal obligation that gives workers access to some of their employment records.
Under a new state law that went into effect July 1, employers now must provide current and former workers with certain employment records upon written request.
Before the passage of the new law, workers in Virginia generally had no legal right to any of their personnel files.
The law does not require the production of the employee’s entire personnel file, but must provide the individual “with a copy of all records or papers retained by the employer in any format,” reflecting:
- the employee’s dates of employment with the employer;
- the employee’s wages or salary during the employment;
- the employee’s job description and job title during the employment; and
- any injuries suffered by the employee during the course of the employment with the employer.
The records must be provided within 30 days of receipt of the request.
A company unable to comply with the 30-day requirement must notify the requester of the reason for the delay and must provide the records within 30 days “after the date of such written notice.”
The employer may charge a reasonable fee per page for copying or sharing the information whether the information is stored in electronic or hard copy format.
A company that fails to comply with the request can be subject to a subpoena.
If the court determines that the employer “willfully refused to comply” with the written request either “by failing to respond to a second or subsequent written request, properly submitted by the employee in writing, without good cause or by imposing a charge in excess of the reasonable expense of making the copies and processing the request for records or papers the court,” the business may have to pay damages for all expenses incurred by the employee to obtain such copies, including a refund of fees if payment has been made for such copies, court costs and reasonable attorney fees.
Employers can send the records to the worker’s attorney or representative (and not directly to the employee) in limited circumstances where certain medical professionals provided a written statement advising that production to the employee would be “reasonably likely to endanger the life or physical safety of the employee or another person, or that such records or papers make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person.”
Employers need to recognize the scope and limits of the law.
The law does not require producing the employee’s entire personnel file. For example, disciplinary records and performance reviews are not included.
Employers should update their personnel policies to comply with the law and designate a person responsible for compliance with any request.