Federal & State Regulations | Recordkeeping - Virginia

State Info

Summary of differences between federal and state regulations

Federal

The Fair Labor Standards Act does not require employers to allow employees access to their personnel files. This access is generally a matter of agreement between an employer and an employee (or the employee’s representative). However, while federal law does not, some state laws require employers to allow employees access to their files. Employers need to comply with the state laws.

Federal OSHA requires that employers must allow employees and their designated representatives to inspect and/or copy records pertaining to exposure to hazardous substances. Access must be provided in a reasonable time, place, and manner. Access must be provided within 15 days working days. No costs may be incurred for the first provision, but subsequent provisions may be charged reasonable, nondiscriminatory administrative costs.

Employees and former employees must be guaranteed access to their individual OSHA 301 forms. Employee representatives will be provided access to the “information about the case” section of the OSHA 301 form in establishments where they represent employees.

The federal Health Insurance Portability and Accountability Act (HIPAA) requires employers to allow employees to inspect and/or obtain a copy of any of their own protected health information that is used to make decisions about them. Employers must provide access within 30 days of receiving a request if the information is maintained or accessible onsite. If not, employers have 60 days to act. Employers must arrange for a mutually convenient time and place for employee access. Employers may charge reasonable, cost-based fees for copying information, but not for retrieving or handling the information or processing a request.

State

Records to be kept on file
Wage and Hour/Payroll	Unemployment Unemployment compensation law requires employers to keep payroll records including the following information with respect to each worker: Name and Social Security number; Date hired, rehired, or returned to work; Date and reason for separation from employment; State in which services were performed; Schedule of work hours per day; Time lost when the worker was unable to perform his or her usual duties; and Wages payable and dates covered for each pay period, as well as total wages paid for each quarter including: Tips, Cash value of other forms of remuneration, Special payments (such as annual bonuses, gifts, prizes, and severance pay), and Payments of advancement or reimbursement for business expenses. These records must be kept for four years from the date wages were paid or payable. VA Code §60.2-114, 16 VAC §5-32-10, Virginia Employment Commission's Virginia Employer's Handbook
Accessible Records	Public employees Under the Virginia Freedom of Information Act, public employees may view their personnel records. Additionally, public employees and applicants may review and inspect all records relative to their performance on employment tests. VA Code §2.2-3705.1 Effective July 1, 2019, every employer must, upon receipt of a written request from a current or former employee or employee’s attorney, furnish a copy of all records or papers retained by the employer in any format, reflecting the following: The employee’s dates of employment with the employer, The employee’s wages or salary during the employment, The employee’s job description and job title during the employment, and Any injuries sustained by the employee during the course of the employment with the employer. Such records or papers shall be provided within 30 days of receipt of such a written request. If, however, the employer is unable to provide such records or papers within 30 days, the employer must notify the requester of such records or papers in writing of the reason for the delay and must have no more than 30 days after the date of such written notice to comply with such request. If the records or papers are kept in paper or hard copy format, the employer may charge a reasonable fee per page for copying. If the records or papers are kept in electronic format, the employer may charge a reasonable fee for the electronic records. VA Code §8.01-413.1
Inaccessible Records	Records not open to public employees include: Written advice of legal counsel; Information compiled specifically for use in litigation or active administrative investigations; Test or examinations used to evaluate student performance, an employee or applicant's qualifications, or qualifications for any license or certificate (unless the employee is the subject of the test or examination); Confidential materials; Closed meetings records (unless otherwise considered an open record under Virginia's Freedom of Information Act); Appraisals and cost estimates of real estate property; Computer software; Vendor proprietary information software; Personal information (unless the information belongs to the employee); Records concerning reserves established in specific claims administered by the Department of the Treasury, or any county, city, or town; Records relating to the negotiation and award of a specific contract where competition or bargaining is involved and where the release of such records would adversely affect the bargaining position or negotiating strategy of the public body; and Portions of records that contain account numbers or routing information for any credit card, debit card, or other financial account of any person or public body (unless the information belongs to the employee). VA Code §2.2-3705.1