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Summary of differences between federal and state regulations
Arrest & conviction record inquiries
West Virginia has no laws or regulations specifically prohibiting arrest or conviction record inquiries. However, the “Pre-Employment Inquiries Technical Assistance Guide” published by the Bureau of Employment Programs offers some guidance. Employers should only inquire about convictions that “bear a direct relationship to the job” and have not been expunged or sealed. Employers should also consider several factors, including nature, recency, and rehabilitation. Inquiries should include a disclaimer that a conviction is not an automatic bar to employment.
Employer immunity from disclosure claims
Effective 90 days after March 31, 2006, in West Virginia, an employer/former employer may disclose to a prospective employer adverse job-related information on an employee/former employee if the disclosure is in writing and a copy is provided to the employee/former employee, 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 discloses information that is knowingly false, knowingly misleading, reckless, or maliciously intended or violates the law or a nondisclosure agreement. Employers/Former employers must send corrected information to all who received the original information and a copy to the employee/former employee, if the original information was false or misleading and the employee/former employee requests it to be done. Job-related information is defined at West Virginia Code 55-7-18a(c).
Currently, a financial institution officer may provide to another financial institution an employee’s/former employee’s participation in a financial institution statute/regulation violation that has already been reported to authorities.
State
Contacts
Employer immunity from disclosure claims
West Virginia Division of Banking
Arrest record inquiries
West Virginia Bureau of Employment Programs
West Virginia Human Rights Commission
Conviction record inquiries
West Virginia Bureau of Employment Programs
West Virginia Human Rights Commission
Regulations
Employer immunity from disclosure claims
West Virginia Code §31A-4-44, Employment information
West Virginia Code §55-7-18a, Employer immunity from liability; disclosure of information regarding former employees [See House Bill 4296]
Arrest record inquiries
None.
Conviction record inquiries
None.
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.