Virginia Is “Banning the Box” Now Too, at Least for Some Employers

On April 3, 2015, Virginia became the latest state to “ban the box” when Governor McAuliffe signed Executive Order Number 41. Executive Order Number 41 prevents state agencies from asking job applicants about criminal convictions and criminal history, at least until that candidate has advanced significantly through the hiring process. Executive Order Number 41 also encourages similar hiring practices among the Commonwealth’s private employers and state government contractors.

The stated purpose of Executive Order Number 41 is to give individuals with arrests or convictions in their past a meaningful opportunity to compete for jobs in Virginia. Therefore, Executive Order Number 41 directs the Virginia Department of Human Resource Management (DHRM) to immediately amend its employment application to “ban the box” – i.e., to remove all questions relating to convictions and criminal history.

The DHRM must also inform all hiring authorities within the executive branch that state employment decisions will not be based on the criminal history of an individual unless demonstrably job-related and consistent with business necessity, or state or federal law prohibits hiring an individual with certain convictions for a particular position.

Criminal history queries and checks are now permissible only after:

1. The candidate has signed the appropriate waiver authorizing release of criminal information;
2. The candidate has been found otherwise eligible for the position; and
3. The candidate is being considered for a specific position.

Should a candidate refuse to sign a qualifying waiver authorizing release of criminal information, the employer is permitted to remove that candidate’s application from further consideration. Executive Order Number 41 tasks the DHRM with providing guidance on what an appropriate waiver should contain.

As with other state “ban the box” laws, Executive Order Number 41 provides for certain exceptions, including for positions identified in accordance with Executive Order Number 41 and § 2.2-1201.1 of the Code of Virginia as “sensitive positions.” “Sensitive positions” are generally described as those directly responsible for the health, safety and welfare of the general populace or protection of critical infrastructures.

Unlike similar laws in neighboring jurisdictions, Executive Order Number 41 applies only to state employers. However, Executive Order Number 41 does encourage private employers and state government contractors to utilize similar employment practices. Additionally, other federal, state and local laws may require employment practices similar to those described in Executive Order Number 41. For example, the U.S. Equal Employment Opportunity Commission (EEOC) considers certain pre-employment criminal history inquiries to be a violation of the employment discrimination laws that apply to private employers and government contractors. For example, the EEOC’s guidelines on Pre-Employment Inquiries and Arrest & Conviction suggest that pre-employment criminal history inquiries may violate Title VII of the Civil Rights Act of 1964, as amended (Title VII), to the extent they:

1. Treat people with similar criminal records differently because of their race, national origin, or another Title VII-protected characteristic (which includes color, sex, and religion) or
2. Screen individuals based on criminal history information if:

a.      They significantly disadvantage Title VII-protected individuals such as African Americans and Hispanics; AND

b.      They do not help the employer accurately decide if the person is likely to be a responsible, reliable, or safe employee.

Employers that obtain an applicant’s or employee’s criminal history information from consumer reporting agencies (CRAs) also must follow the Fair Credit Reporting Act (FCRA). For example, the FCRA requires employers to:

1. Get the applicant’s permission before asking a CRA for a criminal history report;
2. Give the applicant a copy of the report and a summary of the applicant’s rights under the FCRA before taking a negative employment action based on information in the report; and
3. Send the applicant certain notices if it decides not to hire or promote him or her based on the information in the CRA report.

Therefore, private employers in Virginia are encouraged to take the following steps:

1. Review their current employment application materials to identify questions that would be impermissible under applicable laws;
2. Review their current hiring policies and processes, including the potentially discriminatory effect that seemingly neutral polices have, to determine whether they are in compliance with applicable laws and guidance;
3. Consider whether any employment positions are “sensitive positions” and whether there are demonstrable job-related reasons consistent with business necessity for inquiring about criminal history early in the application process;

Train their human resources and managerial staff on appropriate inquiry regarding criminal history.