Ban the Box Laws in Virginia: Criminal History in Hiring

Federal ban the box law applies to federal contractors and subcontractors with contracts exceeding $25,000. Under 28 CFR § 65.3 (the Federal Acquisition Regulation), covered employers must delay inquiries about an applicant's criminal history until after a conditional offer of employment is extended. The rule requires that applicants receive the conditional offer first, and only then may the employer ask about criminal records or conduct a criminal background check. Specifically, employers cannot ask about criminal history on job applications, during interviews, or in initial screening stages.

The regulation protects applicants from early disqualification based solely on criminal record without considering the nature of the crime, how long ago it occurred, or job-relatedness. Federal contractors must also provide applicants with copies of any adverse information discovered and give them an opportunity to respond before making a final hiring decision. The Office of Federal Contract Compliance Programs (OFCCP) within the U.S. Department of Labor enforces this regulation. Remedies for violations include loss of federal contracts, back pay for affected applicants, and potential debarment from federal contracting.

Virginia has no statewide ban the box statute. Unlike states such as California, New York, and others that have enacted comprehensive ban the box laws, Virginia does not restrict when private employers may inquire about criminal history during the hiring process. This means that private employers operating solely within Virginia can ask about criminal convictions on job applications, during interviews, or at any stage of recruitment without legal restriction under state law.

However, Virginia employers must still comply with federal ban the box requirements if they are federal contractors. Additionally, some Virginia localities have enacted their own ban the box ordinances. Arlington County (Virginia Code § 25-206) prohibits county employers and those bidding for county contracts from inquiring about criminal history until after a conditional offer is extended. The City of Alexandria (Alexandria City Code § 4-4-11) similarly requires that criminal history questions be delayed until after a conditional offer stage for city employees and city contractors.

Private employers in most Virginia jurisdictions (outside Arlington and Alexandria) have broader discretion than federal contractors. They are not bound by a state-level delay requirement and may conduct criminal background checks at any point. However, employers in all jurisdictions remain subject to federal fair employment laws and must ensure that criminal history inquiries do not disproportionately impact protected classes or violate Title VII of the Civil Rights Act. Virginia employers should also note that under Virginia Code § 19.2-392.2, certain offenders may have their records sealed or expunged, and employers cannot inquire about or consider sealed/expunged convictions in hiring decisions.

Virginia does not recognize a general ban the box exception for private employers—the rule simply does not apply to most Virginia private employers. However, important exceptions and carve-outs exist in specific contexts.

Federal contractors are required to comply with 28 CFR § 65.3 but have exceptions for national security positions and certain law enforcement roles where background checks may be conducted earlier. Employers in certain regulated industries (such as banking, insurance, and transportation) may have separate statutory requirements to conduct background checks under federal law regardless of ban the box rules.

Virginia Code § 19.2-392.2 creates a significant carve-out: employers cannot inquire about or consider convictions that have been sealed or expunged. Applicants are not required to disclose sealed records and employers cannot use sealed convictions as a basis for denial.

Employers may distinguish between different types of criminal history. Minor misdemeanors, traffic offenses, and charges that did not result in conviction are often treated differently than felony convictions. Business necessity and job-relatedness remain relevant even for federal contractors; asking about violent crimes for a janitorial position may differ from asking about theft for a cashier role.

Union-represented positions may have collective bargaining agreements that impose stricter ban the box requirements than applicable law. Arlington County and Alexandria employers must comply with local ordinances; private employers in those localities must follow local rules even if Virginia state law does not impose a statewide requirement.

Step 1: Document the hiring violation carefully. Keep copies of all job postings, applications submitted to you, interview notes, background check authorization forms, and communications with the applicant. Record the specific date and nature of any criminal history inquiry—whether it appeared on the application form, was asked verbally during an interview, or emerged during background check processes. Document when the inquiry occurred relative to the conditional job offer.

Step 2: Determine whether an internal complaint process exists and consider using it first if you are an employee within the organization. If you are a job applicant, most private Virginia employers do not have formal hiring complaint procedures. However, if the employer is a federal contractor or located in Arlington or Alexandria, request clarification on ban the box policy in writing to create a record. If you are an employee of a federal contractor who believes hiring practices violated the rule, report internally to human resources and request a written response documenting the company's ban the box compliance practices.

Step 3: File with the appropriate agency based on your situation. If the employer is a federal contractor, file a complaint with the Office of Federal Contract Compliance Programs (OFCCP) at www.dol.gov/agencies/ofccp. The complaint must be filed within specific timeframes (generally within one year of the violation). Provide the employer's name, location, federal contract information, details of the violation, names of affected applicants, and dates of the alleged violation. If the violation occurred in Arlington County, file a complaint with Arlington County's Human Rights Office. If in Alexandria, contact the City of Alexandria's Office of Human Rights. For private employers in other Virginia locations, consider whether the violation also constitutes discrimination under Title VII if the criminal history inquiry had a disparate impact on protected classes; if so, file an EEOC complaint at www.eeoc.gov within 180 days of the violation.

Step 4: Expect an investigation process that varies by agency. The OFCCP typically sends a letter acknowledging receipt and may request additional documentation from both the complainant and the employer. The employer will be asked to provide hiring records, documentation of conditional offers, and evidence of when criminal history inquiries were made. This process generally takes 30-90 days for initial assessment. If the OFCCP finds probable cause of violation, it may negotiate settlement with the employer or pursue enforcement action. Arlington and Alexandria will conduct similar investigations through their local human rights agencies, typically within 60-90 days. EEOC complaints allow for 180 days of investigation before a right-to-sue letter is issued.

Step 5: Consult an employment law attorney once you understand which agency has jurisdiction and whether your specific situation involves a ban the box violation or a related discrimination claim. An attorney specializing in employment law can evaluate whether the criminal history inquiry also violated anti-discrimination laws, assess damages, and represent you in settlement negotiations or litigation. Many employment lawyers work on contingency in ban the box cases, particularly those involving federal contractors where significant back pay or front pay remedies may be available.