Virginia Employers Must Comply with a New Personnel Record Law

 

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​Starting July 1, Virginia employers must give workers copies of certain personnel records when they receive a written request for such information. Here's what HR professionals need to know.

No federal laws govern employee access to personnel files, and this new law is the first of its kind in Virginia. It does not require employers to give employees their entire personnel files upon request, said Theresa Connolly and Lauren Goetzl, attorneys with Fisher Phillips in Washington, D.C. Rather, it requires employers to produce only documents reflecting:

  • Dates of employment.
  • Wages or salary.
  • Job description and job title.
  • Any injuries suffered on the job.

Employers don't have to provide documents not on this list, noted Kristina Vaquera and Milena Radovic, attorneys with Jackson Lewis in Norfolk, Va. So, for example, a worker isn't entitled to notes from a workplace investigation or a manager's notes regarding a performance issue, assuming the notes don't fall under any of the four categories specified in the law.

"We recommend that employers develop internal policies and procedures for reviewing and responding to personnel file requests, given that responses are required within 30 days [under the new law]—or within 60 days if the employer can provide a reason for the delay," Connolly and Goetzl suggested.

Exceptions

Even if the documents fall under one of the four categories, employers don't have to provide the records to an employee if his or her treating physician or clinical psychologist has provided a written statement that, in his or her opinion, "the furnishing to or review by the employee of such records or papers would be reasonably likely to endanger the life or physical safety of the employee or another person,"  according to the statute.  Nor are employers required to provide records if the physician or psychologist writes that the records or papers "make reference to a person, other than a health care provider, and the access requested would be reasonably likely to cause substantial harm to such referenced person."

If the employee, his or her attorney, or an authorized insurer requests that the employer provide the documents to the employee's attorney or authorized insurer instead of to the employee, the employer is still required to do so within 30 days of the request.

The new law also includes an exception for documents that were destroyed under an existing document-retention policy and can't be produced.

Compliance Tips

Employers should consider appointing one person to receive and respond to all requests, Connolly and Goetzl said. This would ensure that employees know whom to ask about reviewing their files and that the employer is responding within the statutory time frames.

Employers should educate the HR department, information technology department, and relevant supervisors and managers on complying and responding to requests, Vaquera and Radovic recommended. "Employers should also check their handbooks and document-retention policies for compliance with the statute."

[SHRM members-only toolkit: Complying with Employment Record Requirements]

Compliance can be particularly challenging for multistate employers. Laws requiring access to personnel documents vary by state, and states are increasingly adopting such statutes. Employers should work with national law firms to ensure that their policies comply with all states in which they do business, Vaquera and Radovic said. Multistate employers should have state addenda in their employee handbooks, including any applicable policies for personnel documents, for each state in which they have employees. 

"Because these laws vary greatly by jurisdiction, we recommend that employers consult with employment counsel in preparing policies and responding to personnel file requests," Connolly and Goetzl said.

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