Since 2019, federal law has prohibited federal agencies and contractors from inquiring into a job applicant’s criminal history until after a conditional offer of employment. There is no federal law prohibiting private employers from asking applicants about criminal history, but the EEOC recommends against asking for such information on an application, and, effective July 1, 2020, Virginia Code § 15.2-1505.3 prohibits Virginia agencies and localities from requiring prospective employees to complete an application that asks about prior criminal arrests, charges, or convictions. There are exceptions for certain positions (e.g. law enforcement, schools, health and safety, etc.); and Virginia agencies and localities may ask applicants about criminal matters during or after an interview and may consider such information after an interview.
Effective July 1, 2020, Virginia Code § 19.2-389.3 prohibits employers and educational institutions from asking an applicant for admission or employment about arrests, charges or convictions for possession of marijuana, and prospective employees are not required to disclose that information. This section also prohibits state and local government employees from asking about arrests, charges or convictions for possession of marijuana in connection with an application for a license, permit, registration, or governmental service. A violation of this section is a Class 1 misdemeanor.
Accordingly, unless the position is in a sensitive field, we recommend that:
a. inquiries about criminal history take place only during or after an interview,
b. criminal background checks take place only after a conditional offer of employment,
c. inquiries be job related and consistent with business necessity,
d. if an applicant is denied employment because of his criminal history, he should be so notified,
e. do not ask prospective or current employees about convictions for possession of marijuana, and
f. exclude possession of marijuana from any questions about criminal history.