The Virginia Employment Records Law (“VERL”), VA Code § 8.01-413.1, requires employers to provide employees upon request with copies of all records reflecting the employee’s wages or salary during their employment, and certain other categories of records. The law is important because, inter alia, it gives employees the right to obtain information showing how they are paid and what kinds of deductions their employer is making from their pay. In some situations, obtaining these records may help employees determine whether their employer violated overtime or other wage laws, complied with contractual promises regarding commissions or other compensation, or made unlawful deductions from pay.
Records Employers Must Provide
VERL requires employers, upon receiving a written request from a current or former employee or the employee’s attorney to produce a copy of all records or papers retained by the employer in any format, reflecting:
(i) the employee’s dates of employment with the employer;
(ii) the employee’s wages or salary during the employment;
(iii) the employee’s job description and job title during the employment; and
(iv) any injuries sustained by the employee during the course of the employment with the employer.
The VERL further requires employers to provide such records or papers within 30 days of receiving the written request. If the employer is unable to provide the requested records or papers 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 written notice to comply with the request. The employer may charge reasonable expenses for producing the records.
Enforcement Process – Subpoena
If the employer fails to comply with a written request for the pay records or other employment records, the employee or his attorney may cause a subpoena to be issued to the employer. The subpoena may be issued
(i) upon filing a request for a subpoena with the clerk of the circuit court where any eventual suit would be required to be filed and upon payment of the fees required by VA Code § 17.1-275(A)(18) and fees for service, or
(ii) by the employee’s attorney in a pending civil case in accordance with VA Code § 8.01-407 without payment of the fees established in VA Code § 17.1-275(A)(18).
Enforcement Process – Expenses and Attorney Fees
The VERL further provides that if a court finds that an employer willfully refused to comply with a written request made under VERL, either
(i) by failing to respond to a second or subsequent written request, properly submitted by the employee in writing, without good cause, or
(ii) by imposing a charge in excess of the reasonable expense of making the copies and processing the request for records or papers,
Then the court may award damages for all expenses incurred by the employee to obtain the copies, including a refund of fees if payment has been made for such copies, court costs, and reasonable attorney fees.
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