On January 25, on a 23-15 vote, Virginia’s “ban the box” bill, SB335, passed the Virginia Senate.  The proposal will now make its way to the Virginia House of Delegates for deliberation and potential approval. 

SB 335 generally bars “state agencies” from inquiring into a job candidate’s criminal background before making a conditional offer of employment, and it prevents them from withdrawing such an offer unless a past conviction relates to the duties and responsibilities of the relevant position.  The prohibition does not apply to applications for employment with law-enforcement agencies or certain positions designated as sensitive or in instances where a state agency is expressly permitted to inquire into an individual’s criminal history for employment purposes pursuant to any provision of federal or state law.  The prohibition also does not appear to apply to contractors, as its text is explicit to the regulation of “employees” with state agencies.   

The bill also guarantees local public employers’ ability to ban the box for positions of public employment within the locality, but without mandating that they do so.   

Virginia Senator Rosalyn Dance, the bill’s sponsor, stated: “So often, our fellow Virginians who have paid their debts to society get judged on their past mistakes rather than on their future potential. We need to make sure that our brothers and sisters have the ability to demonstrate their skills, knowledge, and abilities for appropriate jobs, rather than being repeatedly denied a second chance.  I am heartened that my colleagues have voted to write this protection into state law.” 

More than 100 cities and counties and 17 states have adopted similar rules. 

Troutman Sanders has extensive experience in counseling companies on background screening compliance, including in “ban the box” jurisdictions.