Employers typically maintain that a worker’s employment records are the property of the employer, and that whether a worker can review their records is at the employer’s sole discretion. A relatively new amendment to Virginia Code Section 8.01-413.1 changes that. As of July 1, 2019, Virginia law requires employers to release records regarding salary, dates of employment, job description and title, and any injuries sustained on the job to current and former employees or their attorneys. The new law requires the request be made in writing, and that the employer may charge the employee or their attorney a reasonable fee for providing hard copies of the records or retrieving and delivering electronic copies. The records must be produced within 30 days of receipt of the written request; if that obligation cannot be met, the employer must provide written notice of the delay and then produce the records within 30 days of its written notice. The law provides two narrow exceptions: employers are not required to produce the records if the employee’s treating physician or psychologist opines that allowing the employee to review the records “would reasonably endanger the life or physical safety of the employee or another person.” In addition, if the records reference a third party and would reasonably cause substantial harm to that third party, the employer may release those records only to the employee’s attorney or authorized insurer.
In light of this new law, employers should revise their handbooks and policies regarding employment records. Employers should also ensure they respond to every written request by an employee for their records within the 30-day statutory period. If you are unsure what to produce, or if you believe one of the exceptions apply, speak with your general counsel or seek the guidance of an experienced employment law attorney.