Virginia Governor Terry McAuliffe added Virginia to the growing list of states “banning the box” regarding criminal history on state employment applications.  Given the growing list of state and even local legislation regarding applicants’ criminal histories, employers must be vigilant to ensure their employment processes comply with these multiple layers of restrictions.

On April 3, McAuliffe signed Executive Order Number Forty One, entitled “implementation of ‘ban the box’ hiring policies in the Commonwealth.”  In the preamble of this Executive Order, the Governor indicated that his goal was for “every Virginian” to have “a meaningful opportunity to compete for jobs in the Commonwealth.”  He noted, however, that “many people with criminal histories find it difficult to gain employment in Virginia.”  As a result, he signed the Executive Order requiring the removal of questions relating to convictions and criminal history from the Virginia state employment application.

In addition to banning the box, the Executive Order also mandates that state employment decisions cannot be based on the criminal history of an applicant unless the history is “demonstrably job-related and consistent with business necessity.”  The Executive Order also requires state agencies to ensure that any criminal history background check is only conducted after the applicant has signed the appropriate release, has been found otherwise eligible for the position, and is being considered for a specific position.

The Governor’s Executive Order does not apply to private employers, but it does encourage “similar hiring practices among private employers operating within the Commonwealth and state government contractors.”  Given this suggestion, and the ever changing landscape of laws restricting the use of criminal history on job applications, employers should routinely verify their compliance with local, state, and federal law.