2019 Mid-Year Employment Law Update Part I: Virginia

Employers should be aware of recent changes and developments in Virginia and federal laws affecting employment and payroll practices. In this two-part series, we summarize key developments from 2019 so far, and identify steps employers should consider to ensure compliance. This installment focuses on changes in Virginia law.

Employee Records
Effective July 1, 2019, current and former Virginia employees are now entitled to obtain certain personal employment records by written request. Within 30 days of receiving a written request, employers are now generally required under Va. Code § 8.01-413.1 to produce a copy of "all records or papers retained... in any format, reflecting" the employee's dates of employment, wages or salary, job title and job description, and injuries sustained in the course of employment. Because the new law requires production of all documents reflecting the listed information, it may in practice require production of nearly complete personnel and workers' compensation files. For example, performance evaluations are not directly required to be produced, but a performance evaluation that lists an employee's date of hire or job title could be deemed a record or paper "reflecting" that information, and thus subject to production. There is no grandfathered protection of documents created before the effective date, and no explicit protection for information that may be intermingled with that of other employees. The law may be enforced by subpoena, and possibly in some circumstances by civil suit with an attorneys' fee entitlement, but we currently find the enforcement terms unclear. Regardless, the new § 8.01-413.1 will have profound effects on the litigation of employment claims in Virginia, since employees can now start discovery before filing suit, and while still employed.

Paystubs
Effective January 1, 2020, Virginia non-agricultural employers will be required for the first time to provide paystubs to employees on each regular payday. Paystubs for each pay period will then be required under the Virginia Wage Payment Act (Va. Code § 40.1-29) to include the employer's name and address, hours worked, rate of pay, gross wages earned, and the amount and purpose of all deductions. Through 2019, and for agricultural employers thereafter, a breakdown of an employee's pay is required to be provided only on request. Most Virginia employers probably already provide paystubs that are compliant with the new law, but employers should review their practices for compliance before the end of 2019.

Employers should look for further changes to Virginia law, including potential repeal of Virginia's right-to-work law prohibiting "closed" union shops, if control of the state legislature changes hands in this fall's elections.

Next week, we'll publish Part II of this series, focused on recent developments in federal employment law. Stay tuned!