Earlier this year, Virginia joined the list of states that require employers to provide current and former employees with copies of their employment records. The new legislation will go into effect on July 1, 2019.
Under the new legislation, an employer, upon the written request of a current or former employee or employee’s attorney, must furnish a copy of all records or papers that it has retained in any format that reflect the following:
- 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 the employment; and
- any injuries sustained by the employee during the course of the employment with the employer.
Employers may require the requester to pay a reasonable charge per page for copying.
The employer must provide the records within 30 days. However, if the employer cannot provide the records within 30 days, the employer must notify the requester within that period. The employer will have an additional 30 days from the date of the notice to provide the documents.
Records may be withheld only under narrow circumstances where the employee’s treating physician or clinical psychologist states in writing that providing the records to the employee would be reasonably likely to endanger the life or physical safety of the employee or another person.
If an employer fails to comply with the request, the requester may cause a subpoena to be issued, and a court may require the employer to pay damages for all expenses incurred by the requester if the employer’s failure to comply was “willful.”
To help ensure compliance with the new legislation, employers should develop a procedure for timely responding to requests for employment records. Additionally, employers should confirm that the requested documents are properly maintained and available. For example, although the new legislation requires employers to provide both employment and injury records, the Americans with Disabilities Act requires employers to keep medical records separate from employment records.