Hunton Employment & Labor Perspectives

On April 3, 2015, Virginia Governor Terry McAuliffe signed an Executive Order that “bans the box” and prohibits Virginia agencies, boards, and commissions from asking questions about an applicant’s criminal history on employment applications.

The growing “ban the box” movement encourages employers to remove any questions on their job applications that ask applicants to check a box or otherwise indicate if they have a criminal history.  Proponents of this movement believe the elimination of such questions will reduce employer discrimination on the basis of criminal history.  With the signing of McAuliffe’s Order, Virginia joins fourteen other states, the District of Columbia, and over 100 localities that have already enacted some type of “ban the box” measure.

According to the Order, Virginia state agencies, boards, and commissions must delay asking an applicant about his/her arrest or conviction history until after making an initial determination regarding the applicant’s qualifications and skills.  However, the Order also explains that an initial disclosure of an applicant’s criminal history may still be required for certain positions classified as “sensitive.”

The Order does more than simply “ban the box” on public employment applications.  In addition, it mandates that any state employment decision based on an applicant’s criminal history must be “demonstrably job-related and consistent with business necessity” or result from a state or federal law that prohibits hiring an individual with a certain conviction for a particular position.

These provisions in mind, the Order does not guarantee employment to individuals with criminal histories.  In the words of McAuliffe, what is does do is provide such individuals with “the meaningful opportunity to compete for jobs in the Commonwealth.”  On one hand, the Order forces employers to consider an applicant’s actual qualifications before making a decision solely on the basis of a “checked” box.  And when employers finally do become aware of an applicant’s criminal history, they must only deny employment on the basis of such information when necessary.  As a result of this protection, McAuliffe hopes the Order “will remove unnecessary obstacles to economic success for Virginians who deserve a second chance.”

Other states, including Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island, have passed “ban the box” legislation that explicitly extends application to private employers. While the Virginia Order only prohibits the conduct of public state agencies, it does “encourage” state government contractors and private employers operating within the Commonwealth to implement similar hiring practices.

For more information about the “ban the box” movement and its implications, please explore the section of HELP dedicated entirely to criminal background checks. We provide a wide variety of services to clients in this area and are happy to address your company’s concerns.