Virginia Law Update: Employers Must Provide Employment Records Upon Employee Request
Published by Eric A. Welter and Megan M. Carboni on June 20, 2019
New Virginia law requires employers to provide a copy of employment records upon written request of a current or former employee. Employers who willfully refuse may be liable to an employee for damages.
Virginia Senate Bill 1724 (“SB 1724”) was enacted on March 21, 2019. Under the new law, Virginia employers are required to furnish copies of employment records to employees upon written request. Up to now, Virginia employers have not been required to provide employment records upon request by a current or former employee (unless by subpoena or in litigation). SB 1724 was unanimously passed in both the Virginia Senate and House of Delegates before being signed by Virginia Governor Ralph Northam. HB 1724 becomes effective on July 1, 2019.
Amending Va. Code § 8.01-413.1, SB 1724 requires Virginia employers to furnish a copy of all employment records retained by the employer (in any format) within thirty (30) days of a written request from a current or former employee or the employee’s attorney. Employment records include any records or papers reflecting (1) the employee’s dates of employment; (2) the employee’s wages or salary during employment; (3) the employee’s job description and title during employment; and (4) any injuries sustained by the employee during the course of employment. If an employer is unable to provide the requested employment records within 30 days, the employer must notify the employee (or the employee’s attorney) in writing of the reason for the delay and shall have no more than 30 days from that date to comply with the request.
With limited exception, if an employer fails to response to a written request for employment records, the requesting employee or his attorney may seek the records by subpoena duces tecum. If a court finds that an employer willfully refused to furnish employment records upon an employee’s written request, the court may award damages for all expenses incurred by the employee to obtain such records, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees. Under the law, “willfully refuse” means that the employer failed to respond to a second or subsequent request by the employee without good cause, or the employer imposed an unreasonable charge for making copies of the employment records.
Virginia employers should take immediate steps to organize applicable employment records in advance of the July 1, 2019, effective date. Affected employers should also develop procedures for receiving and responding to written requests for employment records within the 30-day response period. Employers may also want to consider developing a written policy to include in employee handbooks regarding employee requests for employment records.
Affected employers should seek counsel if concerned about record retention, as this issue may implicate other recordkeeping requirements and laws. Employers should also consult legal counsel before implementing any new or revised employment policies regarding requests for employment records.Topics: employment records, Policies Procedures and Employee Handbooks, Virginia, Wage and Hour Compliance and Litigation