Traditionally, Virginia private sector employers have had discretion to decide whether to provide current and former employees with copies of or access to their employment records. Beginning July 1, 2019, that will no longer be the case. A new statute grants employees the right to access personnel records.
On March 21, 2019, Gov. Ralph Northam approved an amendment to Virginia Code § 8.01-413.1, which previously addressed only the admissibility of wage and salary records in litigation. The amendment greatly expands the scope of the statute and, for the first time, requires all Virginia employers to provide their current and former employees with copies of their employment records upon written request. Specifically, the amended statute states:
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.
–Virginia Code § 8.01-413.1(B) (emphasis added)
Employers will have 30 days from receipt of a written request to provide copies of the employment records. If an employer cannot provide the records within 30 days, it must provide written notice of the reason for the delay and still produce the records within 30 days of providing the notice.
The statutory requirement to provide copies of personnel records is mandatory with only one narrow exception: when the employee’s personnel file includes a written statement from the employee’s treating physician or clinical psychologist that providing the employee with his/her employment records may endanger the life or safety of the employee or of another person. In this limited circumstance, the employer still must provide the records to the employee’s attorney or authorized insurer, rather than directly to the employee.
An employer’s failure to comply with the statute can have significant consequences. The employee or his/her attorney can issue a subpoena and, if the court deems the employer’s refusal willful, may award damages for all expenses incurred by the employee, including court costs and reasonable attorneys’ fees. Thus, the amended Virginia statute is one of the broadest in the nation.
The amended Virginia Code § 8.01-413.1 goes into effect July 1, 2019. For further information or questions about the statute, or for any question regarding an employee’s request for copies of his/her employment records, please contact the authors, your McGuireWoods contact, or a member of the firm’s labor and employment group.