HR professionals need to know that - commencing July 1, 2019 - employers in Virginia are required, on receipt of a written request, to give current or former workers copies of personnel records containing certain information.
At present, no federal laws govern employee access to personnel files and the new law passed by the Virginia General Assembly is the first of its kind in Virginia.
Theresa Connolly and Lauren Goetzl - attorneys with Fisher Phillips in Washington, D.C - state that the law does not require employers to give employees their entire personnel files upon request - only to produce documents reflecting the following details:
• Dates of employment with the employer
• Wages or salary history during the employment
• Job description and job title during the employment
• Any injuries sustained during the course of the employment with the employer
Regardless of whether or not there is a subpoena, the employer must produce the documents requested within 30 days of the written request. If the employer is unable to meet that deadline, they must notify the person requesting of the reason for the delay. They will then have a further 30 days - and no more - to comply with the records request. The law also allows the employer to make a reasonable charge for the costs of making copies and processing the request.
Theresa Connolly and Lauren Goetzl suggested:
"We recommend that employers develop internal policies and procedures for reviewing and responding to personnel file requests, given that responses are required within 30 days - or within 60 days if the employer can provide a reason for the delay."
Kristina Vaquera and Milena Radovic - attorneys with Jackson Lewis in Norfolk Va. - state that employers do not have to provide documents that are not on the list. For example, a worker is not entitled to notes from a workplace investigation or a manager's notes regarding a performance issue, providing the notes do not fall under any of the four categories specified in the law.
If the employer does not comply with a lawful request by either the employee or their legal representative - either by failing to supply the documents or by charging an unreasonable amount for the records - a court can award the employee damages for all expenses the employee (or former employee) incurs to obtain the records, including attorneys’ fees.
Theresa Connolly and Lauren Goetzl say that employers should consider appointing one person to receive and respond to all requests. They should also educate the HR department, information technology department and relevant supervisors and managers on complying with requests.
Kristina Vaquera and Milena Radovic stated:
"Employers should also check their handbooks and document-retention policies for compliance with the statute."
