Client Alert: Virginia Employers Must Produce Personnel Files
Date: July 1, 2019
- 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 employment
- any injuries sustained by the employee during the course of the employment with the employer (Virginia Code §8.01-413.1(B)).
Prior to the newly enacted statute, Virginia private sector employers had discretion to decide whether to provide current and former employees with copies of or access to their employment records. Now, the Virginia Code requires production and gives employers just 30 days from receipt of a written request from a current or former employee or her attorney to comply. 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 no more than 30 days after the date of that written notice to comply with the records request.
One narrow exception to the statutory requirement exists. Employers are not required to produce employment records to employees where the file includes a written statement from the employee’s treating physician or psychologist and the production may endanger the life or safety of the employee or another person. If the exception applies and the records are not to be produced to the employee, the employer must provide the records to the employee’s attorney or insurer.
Employers who refuse to comply may be served with a subpoena. If a court deems the employer’s refusal to comply with the lawful request willful, the court may award damages for all expenses incurred by the employee, including court costs and reasonable attorneys’ fees.
The production time is tight. Employers should update policies and set procedures to comply with the anticipated increase in requests for personnel files. For assistance updating policies or responding to employee requests for copies of employment records, contact Betsy Davis.