On March 21, 2019, Virginia Governor Ralph Northam approved an amendment and reenactment of Virginia Code § 8.01-413.1. The amendment requires employers to produce certain employment documents upon receipt of a written request from a current or former employee or employee’s attorney and awards possible damages to the employee if the employer fails to do so within the prescribed timeframe. Since the amendment became effective on July 1, 2019, Virginia employers are seeing an uptick in requests for the applicable documents.
The amendment requires an employer to furnish records reflecting dates of employment, wages or salary, job description and job title, and any injuries sustained during the course of employment within 30 days of the receipt of a written request. An employer is not required to be a party to the suit for the statute to apply. Previously, employers were not required to produce such documents without a subpoena. If the employer cannot satisfy the request within 30 days, the employer must notify the requester in writing. The employer will then have an additional 30 days to produce the records. The employer can charge a reasonable fee for the copying of paper records and/or the retrieval of electronic records. Failure to comply with a written request can result in a subpoena and the award of damages against the employer, including the employee’s expenses for obtaining the copies, court costs, and attorneys’ fees.
A limited exception applies when a physician or clinical psychologist has submitted a written statement into the employee’s records that indicates (i) that the employee’s review of such records would be likely to endanger the employee or another person or (ii) that access to the records would be likely to cause substantial harm to a person referenced in the records. If this exception applies, the employer must furnish the records to the employee’s attorney or authorized insurer, rather than the employee, within the 30 day timeframe.
Unresolved Issues and Next Steps
Streamlining litigation appears to be the purpose of the amendment. Until judicial interpretation of the statute is provided, employers may want to proceed cautiously and take a narrow approach to what documents are produced. The plain language of the statute appears to require that employers furnish pay stubs, W-2s, job descriptions, OSHA forms, and/or workers’ compensation accident forms.
The statute does not define what constitutes a “reasonable fee” for the production of records. However, employers may consider using Virginia Code § 8.01-413 as a guidepost, which provides that a medical provider can charge up to $0.50 per page for up to 50 pages and up to $0.25 per page thereafter for copies of records in hard copy or electronic format, $1 per page for hard copies from microfilm or other micrographic processes, and a fee for search and handling not to exceed $20, plus all postage and shipping costs.
The amendment requires the furnishing of a “copy of all records or papers retained by the employer in any format,” but does not reference a specific length of time that employers must retain such records. Employers may want to review their document retention policies for current and former employees with the amendment in mind and ensure retention is in compliance with federal, state, and local laws. Further, employers should consider creating an official process that employees can use to request the documents covered in the statute, and update their handbooks and employee policies accordingly.
Kyle R. Elliott is an associate in the Richmond office of Ogletree Deakins.
Jimmy F. Robinson, Jr. is the office managing shareholder of the Richmond office of Ogletree Deakins.
Erin B. Edwards is a law student, currently participating in the summer associate program in the Richmond office of Ogletree Deakins.
