Background checks - Virginia

Summary of differences between federal and state regulations

Arrest and conviction record inquiries

Applies to state agencies. Executive Order 41 (2015).

Signed into law on April 3, 2015, the executive order required the removal of questions related to criminal backgrounds from all applications for state employment. Unless an applicant’s criminal history is deemed job-related when an eventual background check is performed, state employment decisions may not be made using the information.

Virginia has no laws or regulations specifically prohibiting arrest or conviction record inquiries for private employers. However, applicants in Virginia are not required to disclose expunged arrest records.

Employer immunity from disclosure claims

In Virginia, an employer/former employer may disclose to a prospective employer, upon request of the prospective employer, information about employee/former employee conduct, reasons for separation, job performance, or written performance evaluations, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer disclosed knowingly false information or intentionally misleading information, or disclosed information recklessly.

Preventing a discharged employee, or employee who left voluntarily, from obtaining employment is not allowed.

State

Contacts

Employer immunity from disclosure claims

Virginia Department of Criminal Justice Services

Virginia Department of Labor and Industry

Arrest record inquiries

Virginia Division of Human Rights

Virginia Department of Criminal Justice Services

Conviction record inquiries

Virginia Division of Human Rights

Virginia Department of Criminal Justice Services

Regulations

Employer immunity from disclosure claims

Virginia Code 8.01-46.1, Disclosure of employment-related information; presumptions; causes of action; definitions

Virginia Code 40.1-27, Preventing employment by others of former employee

Arrest record inquiries

Virginia Code Section 19.2-392.4, Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments

Conviction record inquiries

Virginia Code Section 19.2-392.4, Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments

Federal

Contacts

Employer immunity from disclosure claims

None.

Arrest record inquiries

Equal Employment Opportunity Commission (EEOC)

Conviction record inquiries

Equal Employment Opportunity Commission (EEOC)

Regulations

Employer immunity from disclosure claims

None.

Arrest record inquiries

None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.

Conviction record inquiries

None; however, EEOC published the enforcement guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, on April 25, 2012.