Employee Access to Personnel Files in Virginia
April 18, 2015
In Virginia, we are often asked by current and former employees of Virginia employers about whether or not they have the right to obtain a copy of their personnel file or at least have the ability to request and review it. Each state has their own laws and regulations with respect to this issue for private sector employees. Furthermore, government employee (federal, state, county, municipal) requests are governed by different federal, state, county, or city laws and regulations.
Requesting Access to Personnel Files in Virginia
Private sector employees (those employed by companies) are generally not entitled to a copy of their personnel file in most jurisdictions. Virginia has not yet passed a law requiring private sector employers to provide their employees with a copy of their personnel file upon request or in requiring employee access to review their personnel file. Some states, such as California and Massachusetts, have passed laws giving private sector employees access to their personnel files. The national trend appears to be moving towards passing laws requiring employers to provide current and former employees access to their personnel files.
There are some exceptions to the general rule. Private sector employees in Virginia belonging to unions may have additional rights to review or obtain a copy (or review) of their personnel files, depending on collective bargaining agreements negotiated between their union and their Virginia employer. Federal employees in Virginia also generally have the right to obtain a copy of their personnel files through the Privacy Act of 1974, 5 U.S.C. § 552a. Virginia public sector (State or County) employees also generally have the right to review their personnel files under Va. Code 2.2-3705.1 and Va. Code 2.2-3705.5. In addition, if a personnel matter goes to court, an employee will typically be able to obtain a copy of his or her personnel file through the civil discovery process.
Personnel File Tips for Employees and Employers
If a Virginia employee does not have a statutory or other right to obtain a copy of (or review) their personnel file, it is still possible for them to ask human resources for a copy (or to inspect) their personnel file. In other words, even though employers may not have a formal policy on the release of personnel files, human resources will often grant an employee’s request to review his or her personnel file unless there they have a specific reason (or policy) not to. We also advise Virginia employers to consider allowing employees, under certain conditions, the opportunity to review their personnel file even if it is not otherwise required. Doing so often has a positive effect on workplace morale. Such a policy also provides the employer with the ability to document that an employee has been put on notice of disciplinary or performance actions (if they are placed in the employee's personnel file). In addition, an employer should certainly have a policy in place that is consistently applied to all employees.
Berry & Berry, PLLC represents Virginia employees and employers in employment law matters and can be contacted at (703) 668-0070 or www.berrylegal.com to schedule an initial consultation regarding their employment law issues.