Employee Background Check Laws in Virginia

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., is the primary federal law governing background checks nationwide and applies in Virginia. Under the FCRA, employers must obtain written authorization from applicants before obtaining any consumer report (including background checks) from a consumer reporting agency. The law applies to all employers using third-party agencies to conduct background checks.

Before taking adverse action based on background check information, employers must provide the applicant with a copy of the report and a summary of their rights under the FCRA (typically called a "pre-adverse action notice"). The applicant then has an opportunity to dispute inaccurate information with the reporting agency. Only after this opportunity has passed may the employer proceed with adverse action.

The FCRA also requires that if adverse action is taken, the employer must provide the applicant with the name, address, and phone number of the consumer reporting agency that supplied the report. The Equal Employment Opportunity Commission (EEOC) enforces the FCRA in the employment context. Violations can result in damages, attorney fees, and civil penalties. Remedies include actual damages, statutory damages up to $1,000 per violation, punitive damages, and attorney fees.

Virginia does not have a state-specific background check statute that imposes requirements beyond the federal Fair Credit Reporting Act. However, Virginia law does regulate how employers may use criminal history in hiring decisions, which indirectly affects background check practices.

Virginia Code § 40.1-49.2 prohibits employers from discriminating in hiring based on criminal history, with narrow exceptions. An employer may consider or inquire about criminal history only if: (1) the conviction is directly related to the specific position being filled, (2) the conviction is for a felony or misdemeanor that occurred within the past 10 years (with some exceptions for certain positions like childcare or healthcare), or (3) the applicant is applying for a position in law enforcement or with direct access to children, the elderly, or vulnerable individuals. This statute effectively limits when employers can even ask about criminal history on applications and background checks.

Virginia Code § 19.2-392.2 permits the public disclosure of criminal records to employers for hiring purposes, which allows employers to access publicly available criminal history through background check agencies. However, Virginia does not restrict the timing of criminal history inquiries in the application process (no "ban-the-box" requirement)—unlike some states, employers in Virginia may ask about criminal history upfront on the application.

Virgia employers are still required to comply with the FCRA for any third-party background checks. The state has not enacted additional consent, notification, or dispute procedures beyond the federal requirements. Private employers in Virginia (those not covered by federal law due to size) are also bound by the FCRA's requirements if they use a third-party agency. Remedies under Virginia law for discrimination based on illegal consideration of criminal history include state employment discrimination claims, which may be pursued through the Virginia Commission for the Advancement of Social Equity or in court.

Virginia law provides several important exceptions to criminal history protections. Employers may disregard the 10-year limitation and consider older convictions if the applicant is applying for a position in law enforcement, corrections, childcare, education, healthcare, or positions involving direct access to children, the elderly, or vulnerable adults. These positions have legitimate business reasons to inquire about any criminal history regardless of age.

Another significant exception exists under federal law: certain positions are exempt from some FCRA procedures. For example, if an applicant is applying for a position in banking, finance, or positions requiring a security clearance, the FCRA allows some streamlined procedures. However, Virginia employers must still provide notice and opportunity to dispute.

The FCRA itself contains exceptions for government agencies conducting background checks—these are not subject to the full FCRA requirements that bind private employers. Additionally, background checks conducted in-house by the employer (rather than through a third-party agency) are not technically subject to FCRA requirements, though they may be subject to other state and federal discrimination laws.

Small employers who conduct background checks without using a third-party consumer reporting agency may not be technically covered by the FCRA, but they remain subject to Virginia Code § 40.1-49.2's restrictions on criminal history discrimination. The statute of limitations for FCRA violations is 2 years from discovery of the violation. Finally, Virginia employers may not use arrest records that did not result in conviction to make employment decisions, as these are considered unreliable evidence of criminal conduct.

Step 1: Document Everything. From the moment you suspect illegal background check practices, keep detailed records. Save the job application materials, job posting, the background check form you were asked to sign, any consent forms provided, and all communications with the employer about the background check. Photograph or copy the authorization form if you signed one in person. Document the date you applied, the date you were told a background check would be conducted, and the date you learned of an adverse decision. If the employer mentioned your criminal history or raised concerns about your background during interviews, note the date, what was said, and who said it. Save all emails and written communications. If background check information was inaccurate, obtain a copy of your actual criminal records from the Virginia State Police or the relevant courthouse to compare against what the employer claims.

Step 2: Internal Complaint Process and Why It Matters. Before filing a formal complaint, request a written explanation from the employer about the specific background check findings and why adverse action was taken. Send a written request (email or certified letter) to the company's HR department asking for: (1) a copy of the background report they obtained, (2) documentation of their pre-adverse action notice to you, and (3) an explanation of how the findings related to your job. This creates a paper trail and sometimes resolves issues informally. If the employer cannot provide proper documentation showing they followed FCRA procedures (written consent, pre-adverse action notice, adverse action notice), this strengthens your potential claim. Most employers will provide these documents if they followed the law properly. If they refuse or cannot produce them, this is evidence of a violation.

Step 3: File a Complaint with the Appropriate Agency. For federal FCRA violations, you may file a complaint with the Federal Trade Commission (FTC) at reportfraud.ftc.gov or by calling 877-438-4338. The FTC does not investigate individual complaints but uses them to identify patterns of violations. You may also file a complaint with the Consumer Financial Protection Bureau (CFPB) at consumerfinance.gov/complaint if the background check involves credit information. For Virginia-specific discrimination based on criminal history, file a complaint with the Virginia Commission for the Advancement of Social Equity (CASE) at case.virginia.gov or call 804-786-7926. Virginia has no state Human Rights Act, so CASE does not investigate employment discrimination in the traditional sense, but criminal history discrimination can be pursued. The filing deadline for FCRA violations is 2 years from discovery. The deadline for Virginia criminal history discrimination claims depends on how the claim is framed (if brought as a contract or tort claim, it may be 5 years; consult an attorney for the specific statute of limitations). No administrative filing fee is required for FTC or CASE complaints.

Step 4: The Investigation Process—What to Expect and Timeline. The FTC does not typically investigate individual FCRA complaints but will investigate if it identifies a pattern of violations affecting multiple consumers. If you file a state discrimination claim through CASE or with a private attorney, the investigation typically takes 60-120 days if pursued administratively. The employer will be contacted and asked to respond to the allegations. You may be asked for additional documentation of the background check, the job description, and evidence that the employer's decision was based on the background check findings rather than other factors. If the matter proceeds to litigation, discovery (document exchange) can take 6-12 months. The employer must provide copies of the actual background report, internal emails discussing your application, the job description, and any policies on criminal history consideration. Depositions (recorded interviews under oath) may occur. Settlement is common once both sides understand the strength of the evidence.

Step 5: When to Consult an Attorney and What Type. Consult an employment attorney as soon as you learn that an adverse decision is based on your background check, especially if you believe the information in the report is inaccurate or if you were not provided proper notice. You do not need an attorney to file an FTC complaint, but an attorney is essential if you plan to pursue a civil claim for damages under the FCRA or Virginia law. FCRA violations can result in significant damages (up to $1,000 per violation plus actual damages and punitive damages), making them attractive to employment law firms. Many employment attorneys work on contingency (you pay nothing upfront; they take a percentage of any settlement or judgment). Seek an attorney licensed in Virginia who practices employment law or consumer protection law. The Virginia State Bar Lawyer Referral Service is available at vsb.org or 800-552-3852. An attorney can help you identify whether the violation is primarily an FCRA issue (governed by federal law) or a Virginia criminal history discrimination issue, and which forum is most appropriate for your claim.