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Confusion Surrounds a New Virginia Law on Employees’ Personal Identifying Information

Authored by attorney Anne G. Bibeau

A new law, Va. Code § 40.1-28.7:4, which went into effect on July 1, 2013, has caused confusion for Virginia employers.  The law provides that an "employer shall not … be required to release, communicate, or distribute to a third party any current or former employee's personal identifying information," which is defined as home telephone number, cell phone number, email address, shift times, or work schedule.  The law lists exceptions for where employers are required to release personal identifying information pursuant to a federal law, court order, judicial warrant, subpoena, or civil litigation discovery. 

Several commentators have erroneously reported that this law prohibits employers from releasing employees’ personal identifying information.  That’s not what the law says.  While there is no official guidance on the law and it’s impossible to predict how a court would interpret it, employers should know that the law only provides that employers shall not be required to release employees’ personal identifying information, unless one of the exceptions applies.  The law was intended to prevent employers from being compelled to produce employee information to union organizers.  Because it is broadly worded, the law applies to any third-party request for employees' personal identifying information.  However, the law would not prevent an employer from voluntarily disclosing its employees' personal identifying information. 

Nonetheless, there are numerous reasons—unrelated to the new law—that employers should think twice before releasing an employee’s personal identifying information.  Foremost, there may be safety concerns.  In addition, there may be issues of employee morale, competition, customer relations, privacy, and any number of other reasons that employers and employees may have for not wanting such information released.  This new law gives employers an excuse for refusing to produce employees’ personal identifying information except where required by law. 

These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.


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