Legal Question in Employment Law in Virginia

Blocking Access to Employee Records

A recent Virginia CLE had a great write-up on this topic. I'll share excerpts from it here:

Are Virginia employees entitled to a copy of their personnel files?

No, with respect to employees of private sector employers. Most employees mistakenly believe that because a file has their name on it, it is their file. In fact, a personnel file is like any other company record and, unlike many other states, including Massachusetts (Mass. Gen. Laws Ann. ch. 149, � 52C) and California (Cal. Lab. Code � 1198.5), Virginia does not have a statute requiring that private sector employers permit employees access to their personnel file information. Thus, a private sector employer may refuse to give an employee a copy of or even access to the employee�s personnel file.

Public sector employees do have a right in Virginia to review their files. See Va. Code � 2.2-3705.1 (pertaining to exclusion from FOIA rules. �The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: .... 1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof.�

May an employer put negative documentation in an employee�s personnel file without telling the employee or giving the employee a copy?

Yes. Many human resources professionals have been taught erroneously that negative personnel documentation cannot be placed in a personnel file unless a copy is furnished to the employee first. There is no prohibition against a private sector employer in Virginia placing negative personnel documents in an employee�s personnel file without having first given a copy to the employee or having told the employee. This misconception probably arises from fundamental notions of fairness, with some employers believing it would not be �fair� to place such documentation in the employee�s file without having first given the employee a copy.

This was taken from the Virginia CLE bulk-email entitled: "Did You Know? Is an employee entitled to a copy of his or her personnel file?" sent on 14 March 2014. For a complete copy of the email and relevant information, visit Virginia CLE, at: www.vacle.com

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