Beginning July 1, 2019, upon request, employers in Virginia must furnish to employees and former employees copies of any employee records retained by the employer.
While there is no federal law governing employee files, many states have passed laws granting employees the right to view or copy at least some of the contents of their employee records.
Beginning July 1, 2019, employers in Virginia must furnish to employees and former employee’s copies of all records retained by the employer in the following categories:
- the employee’s dates of employment with the employer;
- the employee’s wages or salary during the employment;
- the employee’s job description and job title during the employment; and
- any injuries sustained by the employee during the course of the employment with the employer.
–Virginia Code § 8.01-413(B) (emphasis added)
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 that will no longer be the case. A new statute grants employee the right to access HR’s employee records.
The approved amendment to Virginia Code § 8.01-413.1, which previously addressed only the admissibility of wage and salary records in litigation 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.
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.
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.
Employers should update policies and set procedures to comply with the anticipated increase in requests for employee files.
For assistance updating policies or navigating federal and state employment regulations, contact Inspiring HR. We can help!
This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.