The Virginia General Assembly passed a new law regarding employers’ personnel records. Effective July 1, 2019, Virginia employers must provide a current or former employee (or his/her attorney), upon request, documents reflecting:
- Dates of employment with the employer;
- Wages or salary history during the employment;
- Job description and job title during the employment; or
- Any injuries sustained during the course of the employment with the employer
The employer must honor the request even if there is no subpoena. The employer has 30 days from the receipt of a written request to provide the information. If the employer is unable to meet the 30-day deadline, the employer must notify the requester of the reason for the delay and then will have an additional 30 days, but no more, to comply with the records request. The law allows the employer to charge a “reasonable” amount for the costs of making copies and processing the request.
If the employer willfully fails to comply with a request, either by failing to respond or by charging an unreasonable amount for the records, a court may award the employee damages for all expenses the employee or former employee incurs to obtain the records, including attorneys’ fees.
The law provides an exception allowing an employer to withhold records from an employee if his or her treating physician or clinical psychologist has made a part of the records a written opinion that the employee’s review of the records would be likely to endanger anyone’s life or physical safety, or if the records reference someone whom the requested records would be likely to cause substantial harm. In either circumstance, the employer would still have to produce the records to the employee’s attorney, but not directly to the employee.
This new law is a departure from the former Virginia rule that an employer need not disclose personnel files absent a subpoena. Going forward, employers who receive a request from an employee or former employee should produce the records showing the dates of employment, wage/salary history, job description and title, and any work-related injuries. Other aspects of the personnel file (e.g., performance reviews, disciplinary records, etc.) still would not need to be produced absent a subpoena.
If you have questions about this new law, the labor and employment law attorneys at Vandeventer Black LLP can assist you.