Search form

Virginia Employers Required to Provide Copies of Employment Records Upon Written Request

By Kristina H. Vaquera and Milena Radovic
  • June 12, 2019

On July 1, 2019, a new amendment to Virginia Code Section 8.01-413.1 will take effect. For the first time, all Virginia employers will be required to provide copies of employment records to employees upon written request. Records reflecting dates of employment, wages or salary during employment, job description and job title and any injuries sustained by the employee during employment must now be provided within 30 days of receipt of a written request from the employee, current or former, or the employee’s attorney.

If the employer keeps the records in paper or hard copy format, the employer may charge a reasonable fee per page for copying. Likewise, if the employer keeps the records in an electronic format, the employer may charge a reasonable fee for the electronic records.

If the 30-day obligation cannot be met, then the employer must provide written notice of the delay and produce the records requested within 30 days of the notice. Failure to comply can result in a subpoena being issued for the records and possible damages, including expenses such as court fees and attorney costs. 

The statute provides for one very limited exception. Specifically, an employer will not be required to produce the personnel record if there is a written statement included in the employee’s records by the employee’s treating physician or clinical psychologist that in his or her professional opinion that furnishing the records or allowing the employee to review the records would reasonably endanger the life or physical safety of the employee or another person, or that the records reference another person and access to the records would reasonably cause substantial harm to the referenced person. However, the latter provision does not include a heath care provider.

If an employee’s records contain such statements and an employee requests the record, then the employer must produce the records within 30 days of the request, but only to the employee’s attorney or authorized insurer. The employer may not furnish the records to the employee.

While the statute does not contain a specific reference to the length of time limitation such records must be kept by the employer, the amendment requires “all records or papers retained by the employer” shall be produced.  As a result, employers should review their document retention policies when preparing to comply with this change.

Employers in Virginia should also review current handbooks and policies and revise provisions that refer to employment files and records as the property of the employer as well as language that deem requests for records or files by the employee being at the employer’s sole discretion.

If you have any questions, please contact the authors of this article or the Jackson Lewis attorney with whom you regularly work.

©2019 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

See AllRelated Articles You May Like

December 13, 2019

Restaurant Industry Workplace Law Update – Fall 2019

December 13, 2019

To assist restaurant owners and professionals in assessing emerging employment risks, we are pleased to provide the first issue of our newsletter. The Restaurant Industry Workplace Law Update highlights topical issues in claims, defenses, and liability risk management developments. Supreme Court’s Epic Systems Decision on Arbitration... Read More

December 12, 2019

California Bar on Mandatory Arbitration Agreements in Employment Challenged, Injunction Sought

December 12, 2019

The U.S. Chamber of Commerce and other business organizations have filed suit in federal court against the State of California to have AB 51 declared preempted by the Federal Arbitration Act (FAA). Chamber of Commerce of the United States v. Becerra, No. 2:19-cv-2456 KJM DB. Alternatively, the lawsuit seeks a declaration that AB 51’s... Read More

December 10, 2019

End of Year Developments for New York Employers

December 10, 2019

As 2019 comes to a close, legislative and administrative actions in New York require consideration by employers in the state. First, Governor Andrew Cuomo signed legislation adding reproductive rights as a protected class under the state Human Rights Law. Such an enactment usually requires an employer: (1) to ensure that there is... Read More