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Saturday, March 15, 2014

Access to Employee Records

While answering questions on a review board, I came across a request for information on employee records. I responded by citing to a Virginia CLE document covering the same topic -- see below!

Blocking Access to Employee Records

A recent Virginia CLE had a great write-up on this topic. I'll share excerpts from it here:

Are Virginia employees entitled to a copy of their personnel files?

No, with respect to employees of private sector employers. Most employees mistakenly believe that because a file has their name on it, it is their file. In fact, a personnel file is like any other company record and, unlike many other states, including Massachusetts (Mass. Gen. Laws Ann. ch. 149, § 52C) and California (Cal. Lab. Code § 1198.5), Virginia does not have a statute requiring that private sector employers permit employees access to their personnel file information. Thus, a private sector employer may refuse to give an employee a copy of or even access to the employee’s personnel file.


Public sector employees do have a right in Virginia to review their files. See Va. Code § 2.2-3705.1 (pertaining to exclusion from FOIA rules. “The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: .... 1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof.” ...

May an employer put negative documentation in an employee’s personnel file without telling the employee or giving the employee a copy?

Yes. Many human resources professionals have been taught erroneously that negative personnel documentation cannot be placed in a personnel file unless a copy is furnished to the employee first. There is no prohibition against a private sector employer in Virginia placing negative personnel documents in an employee’s personnel file without having first given a copy to the employee or having told the employee. This misconception probably arises from fundamental notions of fairness, with some employers believing it would not be “fair” to place such documentation in the employee’s file without having first given the employee a copy. ...

This was taken from the Virginia CLE bulk-email entitled: "Did You Know? Is an employee entitled to a copy of his or her personnel file?" sent on 14 March 2014. For a complete copy of the email and relevant information, visit Virginia CLE, at:

Do you have a question about employment law? Give us a ring! We can help -- 703-402-2723.

Sean Hanover, Esq.
Hanover Law
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

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