Virginia Becomes 15th State to Ban the Box
Author: David B. Weisenfeld, XpertHR Legal Editor
April 8, 2015
Virginia has become the 15th state to enact a "ban the box" law with Governor Terry McAuliffe signing an executive order on April 3. Ban the box refers to eliminating the box on job applications that prospective employees are often asked to check off if they have ever been convicted of a crime.
The Virginia measure orders the removal of criminal history questions from state job applications. It also makes clear that state employment decisions may not be based on an individual's criminal history unless doing so is demonstrably job-related and consistent with business necessity, or state law prohibits hiring an individual with certain convictions for a particular position (such as the Virginia State Police).
While the new law does not apply to the private businesses, it encourages similar hiring practices among private employers operating within Virginia as well as among state government contractors. In his order, Governor McAuliffe said, "It is vitally important to Virginia's new economy that every Virginian has a meaningful opportunity to compete for jobs in the Commonwealth."
The Virginia order also says state agencies may only conduct a background check after an applicant has been found otherwise qualified for a position and is being considered for the job.
Virginia becomes the second southern state in less than two months to "ban the box" on state job applications. Georgia did so on February 23, also via executive order. A dozen Virginia cities and counties, including Arlington, Richmond, Newport News and Virginia Beach, had already removed criminal history questions from city job applications.
Of the 15 states to enact "ban the box" laws, only six apply to private employers. These include:
- Hawaii;
- Illinois;
- Massachusetts;
- Minnesota;
- New Jersey; and
- Rhode Island.
Employers should be aware that an increasing number of cities have passed "ban the box" ordinances that not only apply to private employers, but prohibit criminal history inquiries until a conditional job offer has been made or after a live interview has taken place. These cities include Baltimore and the District of Columbia among others.
The EEOC stated in a 2012 Enforcement Guidance that before any employer precludes an applicant with a criminal record from employment, it should give the applicant a chance to explain the circumstances and why he or she should not be excluded from consideration.