Preemployment Screening and Testing: Virginia
Federal law and guidance on this subject should be reviewed together with this section.
Author: Jessica Sussman
- Virginia employers may not require applicants to disclose information about arrest or criminal charges that did not result in conviction or that have been expunged. See Arrest and Conviction Inquiries.
- Applicants for certain positions must undergo a mandatory background check as a condition of employment. See Mandatory Background Checks.
- Although Virginia does not regulate the drug and alcohol testing of applicants, employers should ensure that any testing in conducted in a uniform, non-discriminatory manner. See Drug Testing.
- Genetic testing in employment is prohibited in Virginia. See Genetic Testing.
- Employers must have the express consent of applicants in order to conduct an AIDS/HIV test. See AIDS/HIV Testing.
- Virginia law has several laws that regulate the use of polygraph tests during the preemployment screening process. See Polygraph Tests.
- Virginia recognizes a cause of action for negligent hiring. As a result, employers should take all necessary precautions to ensure the applicant does not pose a potential harm to others. See Negligent Hiring.
- A mandatory E-Verify law applies to state government agencies and also covers contractors doing business with state agencies above a certain amount. See E-Verify.
Arrest and Conviction Records
Virginia employers may not require job applicants to disclose information about arrest or criminal charges that did not result in conviction or that have been expunged. +Va. Code Ann. § 19.2-392.4.
Criminal history record information may be disseminated to public service agencies for investigations of job applicants if the job at issue involves personal contact with the public or when past criminal conduct will be inappropriate with the nature of employment under consideration. +Va. Code Ann. § 19.2-389.
While employers are permitted to ask job applicants or employees for their criminal history information, most employers may not obtain the records directly. Rather, the applicant or employee must request the information and turn it over to the employer.
Exceptions exist for occupations connected to hospitals, nursing homes, in-home care, mental health care facilities, childcare, schools, licensed residential facilities for juveniles or adults, and public service companies.
Under certain circumstances, if a person is charged with a crime and is pardoned or not convicted, then the arrest or conviction record may be sealed. An employer may not ask a job applicant or employee to disclose information about a sealed record, and an applicant who is asked such a question may refuse to answer.
Employers may, however, inquire about information concerning criminal convictions if a prospective employee will work with children or adults at a day care facility or nursing home.
In Enforcement Guidance, the EEOC made clear that before an employer precludes an individual with a criminal record from employment, the employer should engage in an individualized assessment of the situation with the applicant so that the individual can explain the circumstances of the conviction and why it should not exclude him or her from employment.
Mandatory Background Checks
Virginia requires criminal background checks to be conducted for applicants applying to be child care providers.
The governing boards or administrators of accredited Virginia private schools also shall require any applicant who accepts employment, whether full-time or part-time, to submit to fingerprinting and a criminal records check as a condition of employment. +2016 Va. ALS 454.
Virginia has no state law regarding credit check requirements that exceeds those required by the federal Fair Credit Reporting Act and Consumer Credit Reform Act. Therefore, Virginia employers should abide by the provisions of the FCRA when conducting credit checks during the preemployment screening process. See Preemployment Screening and Testing > Fair Credit Reporting Act (FCRA).
The FCRA provides that employers are prohibited from obtaining a consumer report, unless a clear and conspicuous written disclosure has been made to the applicant before the report is performed and the employer obtains written authorization from the applicant. The disclosure must be made in a separate written document and may not be a part of the employment application.
Employers should rely on credit checks for legitimate employment purposes only and may not use the reports to obtain discriminatory information about a candidate.
Virginia does not have laws regulating workplace drug and alcohol testing. Employers, however, should be sure to conduct any testing in a uniform nondiscriminatory manner. Additionally, employers should ensure that any drug testing is conducted in a manner that does not invade an applicant's privacy rights.
Virginia employers may not require job applicants or employees to pay the cost of a medical examination or the cost of furnishing any medical records as a condition of employment. +Va. Code Ann. § 40.1-28.
Genetic testing in employment is prohibited. +Va. Code Ann. § 40.1-28.7:1. Virginia employers may not refuse to hire, fail to promote, terminate or otherwise adversely affect any terms or conditions of employment of any employee or prospective employee solely on the basis of a genetic characteristic.
Virginia employers are prohibited from conducting AIDS/HIV tests without the express consent of the applicant. If an employer receives authorization to conduct such a test, the results must be kept confidential. +Va. Code Ann. § 32.1-37.2.
An employer that discloses such confidential information may be held civilly liable. Unauthorized disclosure of the results is punishable by a penalty of up to $5,000. As is the case with medical testing in general, employers may not require prospective employees to pay for an examination required by the employer as a condition of employment.
Virginia has a polygraph statute that regulates the type of questions an employer may ask during a polygraph examination. +Va. Code Ann. § 40.1-51.4:3. Virginia employers may not question applicants during a preemployment polygraph test regarding a prospective employee's sexual activities, unless the prospective employee has been convicted in Virginia of a sexual crime. +Va. Code Ann. § 40.1-51.4:3.
Virginia law does, however, permit the use of polygraph tests as a condition of employment. See Denzler v. Henrico County School Board, +27 Va. Cir. 486 (1984). Employers have a duty to keep the results of these tests confidential. +Va. Code Ann. § 40.1-51.4:3. Violation of the polygraph statute regarding types of questions asked and confidentiality constitutes a misdemeanor with a penalty of no more than 12 months in jail and/or a $2500 fine. +Va. Code. Ann. § 18.2-11.
The statute exempts certain employees from coverage, including employees of the state of Virginia or its agencies. +Va. Code. Ann. § 40.1-2.1. The exception is that a state law enforcement agency may not require an employee to submit to a lie detector test or otherwise take an adverse employment action against such an employee for refusal to take a test.
The chief executive officer, however, has the authority to authorize the testing of a state law enforcement employee as part of an investigation into allegations of misconduct or criminal activity. Employers may not take any adverse action based on the test results for employees under investigation. +Va. Code Ann. § 40.1-51.4:4(B). An employee unlawfully demoted, terminated or otherwise discriminated against in violation of these provisions may be reinstated with back pay plus interest. +Va. Code. Ann. 40.1-51.4:4(C).
Virginia recognizes claims of negligent hiring. This cause of action requires proof that
- The employer knew, or should have discovered by reasonable investigation, an applicant's propensities to cause harm in an employment position;
- It should have been foreseeable that the hired individual posed a threat of injury to others; and
- The employer's negligent hiring was the proximate cause of the harm to another individual.
See Interim Personnel of Central Virginia v. Messer, +263 Va. 435(2002).
In order to defend against a claim of negligent hiring, employers will need to establish that they investigated the candidate prior to his or her hire, and there were no indications of a propensity to cause harm during the screening process.
As a result, employers should conduct all permitted means of screening, and save the results, should a negligent hiring claim arise. Since the statute of limitations is two years for negligent hiring claims in Virginia, the records should be kept for at least two years.
Contractors entering into a contract of more than $50,000 with any Virginia agency, and that also have averaged 50 or more employees for the previous 12 months, now must register and participate in the E-Verify program to verify work authorization for their newly-hired employees.
Any employer that fails to comply with this provision will be barred from contracting with any Commonwealth agency for a period of up to one year. This penalty shall end if the employer registers and participates in the E-Verify program.
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