Hunton Employment & Labor Perspectives

A new Virginia law will require employers to provide current or former employees with copies of certain employment-related documents upon request.

Effective July 1, 2019, Virginia employers must provide a copy of a limited set of employment documents to employees upon receipt of a written request for such information from the employee, her attorney or an authorized insurer.  The law applies to current and former employees, and allows an employer 30 days to produce the documents after receipt of the request.

The employer may charge the employee a reasonable fee for the cost of producing the employment records.  If the employer cannot provide the records within 30 days of receiving the employee’s request, then it must notify the employee in writing of the reason for the delay and produce the records within 30 days of providing such notice to the employee.

The statute requires an employer to provide “all records or papers retained by the employer” reflecting: (i) the employee’s dates of employment; (ii) the employee’s wages or salary during the employment; (iii) the employee’s job description or title during the employment; and (iv) any injuries sustained during the course of employment with the employer.

The remedy for employees who do not receive records under the law involves a two-step process.  First, the employee or her attorney must file a subpoena duces tecum in court to request the employment records.  If the court where the subpoena is filed finds that the employer willfully refused to provide the records after a valid request, then it can order the employer to produce the records, pay the employee’s reasonable attorneys’ fees and court costs and refund any money the employee paid to access the records.

Employers should prepare to comply with the new law by updating any employee handbooks or policies that relate to access to employment records.  They should also consider designating a company representative to serve as a records custodian or designee to receive and process any requests that arise, particularly given the relatively short turnaround time for producing the records under the law.