Starting July 1, 2019, Virginia employers must provide copies of certain employment records to current and former employees and their attorneys within 30 days of receiving a written request. Click here to read the new law.
What kind of records are included in this requirement?
Employers must provide documents with the following information:
- Employee’s dates of employment with the employer
- Employee’s wages or salary during the employment
- Employee’s job description and job title during the employment
- Any injuries sustained by the employee while employed with the employer
Do employers have to absorb the cost of complying?
Employers may charge reasonable costs for responding to such requests whether the documents are kept in electronic or paper form.
What happens if an employer doesn’t respond or refuses a request?
Employers who fail to comply may receive subpoenas for the records even when there is no pending civil action. They also may be liable for costs and fees associated with the request.
There is a narrow exception if responding to the request may be reasonably expected to endanger the employee’s or another’s life. Employers should speak with their attorney if they believe this exception applies to a particular instance.
What is the biggest concern for employers?
Besides the legal risks of not complying, consider the possibility that employees may request and share documents reflecting their wages. Are you sure you have no unexplainable disparities, wage gaps, or pay equity concerns?
Employers must be sure they can comply with this new law and are comfortable the information won’t lead to discrimination or wage payment claims.
What steps should employers take now?
Employers should prepare for compliance with this new requirement by doing the following:
- Maintain separate files – Employers should conduct an internal file review to be sure documents are up to date and appropriately filed. Make sure personnel records are kept separate from medical records and Form I-9s.
- Conduct a wage payment audit – Evaluate reasons for wage discrepancies between employees performing the same job duties. (This is also important because the Department of Labor is likely updating the salary level for exempt employees soon!)
- Update job descriptions – Update the descriptions to reflect accurately the requirements and duties associated with the position.
- Ensure policy compliance – Update any handbook policies regarding access to employment records to comply with the new law. Institute internal processes for complying with requests.
- Call with questions – The Labor & Employment attorneys at Woods Rogers are always here to help you navigate through these and any other requirements!