A new Virginia law took effect on July 1, 2013 that modifies employers’ duties to provide “personal identifiable information” to third parties. The law, Va. Code Ann. § 40.1-28.7:4, aims to protect this sensitive information and gives employers another weapon in their arsenal to challenge requests for such information by third-parties. In essence, the law provides that no employer shall be required to release a former or current employee’s personal identifiable information to any third party, with various exceptions.
What Information Does the New Law Protect?
The new Virginia statute specifically protects the release of an employee’s:
- Home telephone number
- Mobile telephone number
- E-mail address
- Shift times
- Work schedule
What Information Does the New Law Not Protect?
As with most laws, exceptions do apply. The law:
- Does not protect the personal identifiable information listed above if it is sought through a warrant, a subpoena or litigation “discovery”; if sought pursuant to a court order; or if disclosure is required by another law.
- Does not prohibit employers from disclosing such information. Instead, it simply (a) leaves to employers the decision as to whether to disclose the information; and (b) provides employers with a legal basis for refusing to provide it.
Although it is unclear how this new law will affect the day-to-day operations of most Virginia businesses, it likely will prompt a number of questions, most of which will involve situations where the statute contradicts contractual obligations (e.g., contracts that may exist between an employer and employee) or laws from other jurisdictions. For example:
- What happens when a union representative wants to know the shift schedules or contact information of union members or potential union members who work in Virginia? The new Virginia statute could be deemed to contradict a neutrality agreement or collective bargaining agreement and may well raise federal preemption issues. In those circumstances, Virginia employers will need to scrutinize carefully their agreements and ensure that their communications (or lack thereof) with union representatives do not infringe employees’ rights to organize or collectively bargain.
- Should a receptionist refuse to give a potential customer a salesperson’s e-mail address or refuse to tell that customer when a particular salesperson will be working? Virginia employers have never been required to keep this information confidential, but now the law explicitly gives them that option.
- What happens when an employee’s representative requests access to a Virginia employee’s personnel file? In California, Illinois, Iowa, Maine and Pennsylvania, an employee’s representative or agent has the right to access an employee’s personnel file under certain circumstances, but not under the new Virginia law or the law of some other states, such as Delaware. The new Virginia statute does not address the conflict that occurs when a Virginia employer receives a request from an employee who works in a different state. Given that the Virginia law is permissive, the best practice may be to comply with the least restrictive law. Employers, however, may find themselves resorting to a traditional conflict-of-laws analysis when a dispute arises.
- Does the new law allow an employer to refuse to provide personal identifiable information to a subcontractor or other affiliated entities? The answer will likely depend on the corporate structure of and legal ties between related organizational entities.
Ultimately, the new law will serve to protect employers and employees’ personal information. Nevertheless, the law will prompt questions, some of which may remain unclear for some time until there is further regulatory guidance or related enforcement history. In the meantime, employers should develop policies or operating procedures to address the circumstances in which they will disclose personal identifiable information. By identifying any possible contract provisions that would conflict with the new law and reviewing the governing laws of other jurisdictions in which a company’s employees work to determine which law will govern, employers will be best situated to take advantage of the new protection provided by Va. Code Ann. § 40.1-28.7:4 and statutes like it.
For questions regarding the new Virginia statute or in reviewing, revising or implementing employee information disclosure policies, please contact the authors or any other members of the McGuireWoods Labor and Employment group.