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Until now, personnel records in Virginia have typically been considered to be the property of the employer, with employees having no right to require their production outside of legal proceedings. Effective July 1, 2019, however, newly amended Section 8.01-413.1 of the Virginia Code requires employers to provide all current and former employees, or their attorneys, with copies of certain records upon written request.

Under the new law, employers have 30 days to respond to written requests with a copy of all of the employer’s records reflecting the following information about the current or former employee: (1) dates of employment with the employer, (2) wages or salary during the employment, (3) job description and job title during the employment, and (4) any injuries sustained during the course of the employment. The law applies to records in any format, so employers will need to be aware of applicable hard copy and digital personnel files. If the employer is unable to provide records within 30 days, it can notify the employee of the reason for the delay and will have up to 30 additional days to respond. The employer may also charge reasonable fees for copying documents or for providing electronic records.

Employers should take this new obligation seriously, as failure to respond to an employee’s written request for covered records could be expensive. An employee who does not receive an appropriate response has the right to subpoena the records, regardless of whether there is a pending court case. Furthermore, if the court finds that the employer willfully refused to comply with the employee’s written request by either (1) failing to respond to a valid second request without good cause or (2) imposing an unreasonable charge for producing the files, the court may award a refund of any fees paid for the copies, court costs, and reasonable attorney’s fees to the employee.

The new law only provides two exceptions to the production requirement: (1) when the employee’s records contain a written statement from the employee’s treating physician that allowing the employee to receive or review such records would likely endanger the life or safety of the employee or another person; and (2) when another person, other than a healthcare provider, is referenced in the records and the disclosure would be reasonably likely to cause substantial harm to that person. Even in such instances, however, the records may still need to be furnished to the employee’s attorney or authorized insurer.

On its face, the statute requires only a narrow set of personnel records to be provided upon written request. Nevertheless, employees and former employees—particularly those looking to investigate potential claims—could attempt to read the categories more broadly. It will likely be up to the courts to define the outer boundaries of the new requirements. In the meantime, employers who have questions about what the new law requires should seek out experienced employment law counsel.

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Luis F. Ruiz

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