Effective July 1, 2019 an amendment to Virginia Code § 8.01-413.1 requires Virginia employers to provide former and current employees with copies of certain personnel records if the former or current employee (or their attorney) submits a written request.
Specifically, the employer must provide 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.
Copies of these records must be provided within thirty (30) days of receipt of the written request. If an employer cannot provide the records within 30 days, it must provide written notice of the reason for the delay and must produce the records within 30 days of providing the employee notice of the basis for delay.
Requirement to provide records is subject to two narrow exceptions. The employer may refrain from providing the records if the employee’s personnel file includes either:
(i) a written statement from a treating physician or clinical psychologist of the employee stating that the employee, if given their employment records, might endanger the life or safety of the employee or of another person; or
(ii) a reference to a person, other than a health care provider, such that the access requested would be reasonably likely to cause substantial harm to the referenced person. However, even in these circumstances, the employer must still provide the records to the employee’s attorney or authorized insurer within 30 days of the request.
Failure to comply is grounds for the employee or their attorney to seek issuance of a subpoena and, if the court finds the employer’s refusal to comply was willful, the court may award damages, including expenses, court costs, and attorneys’ fees.
The amendment does provide that an employer may charge a reasonable fee per page for copying or for electronic records, however, if an employer is found to have charged more than a reasonable amount, the employee may recover the same damages as if the employer refused to provide the records. Accordingly, unless the records are lengthy or retrieval of them is costly, best practices will be to keep record request charges to a de minimis amount.
If you are an employer and have questions or would like to discuss further, please email: VA Personnel File Update and we will be glad to assist you.