New in Virginia Employment Law!

January 15, 2020

Employers with employees in Virginia need to be aware of several recent statutory changes that impact employers and employees in the state. These changes include new requirements regarding the disclosure of personnel files, nondisclosure or confidentiality agreements between employers and employees, and wage statements issued by employers.

Disclosure of Personnel Files

In 2019, the Virginia legislature enacted a provision that requires employers to provide a copy of certain records retained in the employee’s or former employee’s personnel file upon request. This includes records which reflect the employee’s or former employee’s (1) dates of employment; (2) wages or salary during the employment; (3) job description and job title, and; (4) any injuries sustained by the employee or former employee during the course of the employment with the employer.

This provision, which took effect on July 1, 2019, requires the employer to provide these records within 30 days of receipt of a written request. If the employer is unable to provide the records within 30 days, the employer must notify the requester in writing of the reason for the delay. The employer then has no more than 30 days after the date of the notice to produce the requested records. The law allows the employer to charge a reasonable fee for copying paper records or for producing electronic records but does not set the fee that an employer may charge.

If an employer fails to produce the requested records in a timely manner, a subpoena may be issued compelling the employer to provide the records. The employer may have to pay all expenses incurred by the employee or former employee, including fees paid to obtain the requested records, court costs, and reasonable attorney fees if an employer fails to provide the requested records or imposes an unreasonable fee for copying records and processing the request.

Restrictions on Nondisclosure/Confidentiality Agreements

The Virginia legislature also limited employers’ use of nondisclosure and confidentiality agreements in 2019. Under the new law, nondisclosure and confidentiality agreements shall not include any provision that would require the concealment of any claim of sexual assault against the employer. This prohibition is limited to job applicants and current employees. This provision, which also took effect on July 1, 2019, does not define “sexual assault,” but references the Commonwealth’s statutes on rape, forcible sodomy, aggravated sexual battery, and sexual battery. Under the statute, any such provision in a nondisclosure or confidentiality agreement is against public policy and is therefore void and unenforceable.

Wage Statements

Prior to January 1, 2020, Virginia employers were only required to provide an employee with a written statement of the employee’s gross wages and deductions when an employee requested a written statement. But beginning January 1, 2020, on each regular pay date, Virginia employers are now required to provide all employees with a written statement, either paper or electronic, that includes (1) the name and address of the employee; (2) the number of hours worked during the pay period; (3) the employee’s rate of pay; (4) the employee’s gross wages during the pay period, and; (5) the amount and purpose of any deductions from the employee’s wages.

Employers in agricultural employment, including agribusiness and forestry, are excluded from this requirement. However, agricultural employers must furnish their employees with a written statement that includes the amount of gross wages earned by the employee during the pay period as      well as the amount and purpose of any deductions from the employee’s wages during the pay period.

It should be noted that the statute requires most employers to pay hourly employees at least once every two weeks or twice a month, and to pay salaried employees at least once a month. However, some students who are enrolled in a work-study type program and some highly compensated hourly employees may be paid on a monthly basis if the employer chooses to do so and the employee agrees.

This update is provided for informational purposes only. It is not intended as legal advice, nor does it create an attorney/client relationship between McGuire Moore Law LLC and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of McGuire Moore Law LLC.

This update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

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