Virginia has traditionally been an employer-friendly state. Indeed, unlike many other states, private sector employees did not have the legal right to a copy of their personnel files unless their employers permitted them to have one.
However, on March 21, 2019, Governor Ralph Northam signed into law an amendment to Virginia Code § 8.01-413.1, which will require all Virginia employers to provide their current and former employees with copies of certain employment records upon written request. In pertinent part, the new law 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.
The only limited exception to the disclosure requirement is 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. However, if this exception applies, the employer must nevertheless provide the records to the employee’s attorney or authorized insurer, rather than directly to the employee.
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 those 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. These timeframes are relatively generous.
If an employer fails to comply with the statute, 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. This is somewhat broader compared to some personnel file laws in other states. On the other hand, the Virginia law does not, like some laws in other states, require employers to produce records expressly relating to employee performance or disciplinary actions.
The new law goes into effect on July 1, 2019.