Virginia Employment Background Check Laws and Requirements

Virginia employment background check laws combine state restrictions on who can access criminal records with federal rules — the Fair Credit Reporting Act, Title VII, and the Americans with Disabilities Act — that govern how employers request, use, and act on what they find. State agencies cannot ask about criminal history on an initial application, private employers can, and everyone who orders a report through a third-party screening company has to follow a strict consent-and-notice process. A significant record-sealing expansion takes effect July 1, 2026.

What Employers Can See in Your Criminal Record

Virginia does not open its criminal history database to employers. Under Virginia Code 19.2-389, records held by the Central Criminal Records Exchange are released only to specifically authorized recipients, including criminal justice agencies and entities that need the records to comply with a state or federal law tied to criminal conduct.¹ Most private employers are not on that list. They rely instead on third-party background check companies that search court records and other public sources.

One protection built into the statute matters for older cases: arrest information cannot be released to non-criminal justice recipients if more than a year has passed since the arrest without a recorded disposition or active prosecution.¹ An old arrest that never produced charges should not surface through state channels.

Juvenile records get even tighter treatment. Under Virginia Code 19.2-389.1, the list of authorized recipients names criminal justice agencies, threat assessment teams, firearms eligibility checks, and sentencing investigations. Private employers are not on it.² Some juvenile adjudications may still appear in court records accessible through other channels, but a standard employment background check should not reveal them.

When Employers Can Ask About Criminal History

Virginia’s ban-the-box policy bars state agencies from asking about criminal history on the initial job application. Candidates get evaluated on qualifications first; criminal history enters the conversation later, typically after an interview or conditional offer. The rule does not apply to law enforcement, public safety roles, or jobs where a background check is required by law. Richmond and Norfolk have adopted local ordinances that extend similar protections within their jurisdictions.

Private employers in Virginia are not covered by a statewide ban-the-box requirement. They can ask about criminal history at any point in the process, though how they use the answer is still governed by federal anti-discrimination rules.

Federal and federal contractor jobs sit under a separate rule. The Fair Chance to Compete for Jobs Act of 2019, which took effect in late 2021, bars federal agencies and federal contractors from requesting criminal history information before making a conditional offer.³ The Office of Personnel Management finalized implementing regulations in 2023 that include complaint procedures for applicants who believe an agency broke the rule.⁴ Security clearance positions, law enforcement roles, and jobs involving classified information are exempt.

How Employers Can Use What They Find

Getting the record legally is only half the question. Using it to disqualify every applicant with any criminal history creates legal exposure. The EEOC has long taken the position that blanket exclusions can violate Title VII by disproportionately affecting applicants of certain races or national origins, a theory called disparate impact.⁵

Instead of a bright-line policy, employers are expected to run an individualized assessment using the Green factors from Green v. Missouri Pacific Railroad:

The nature and gravity of the offense. A fraud conviction weighs more heavily for an accounting role than for warehouse work.
The time that has passed since the offense or completion of the sentence. A conviction from 15 years ago carries less weight than one from last year.
The nature of the job. The tighter the fit between the crime and the actual duties, the more defensible the exclusion.

Hiring discrimination claims usually turn on this reasoning, not on whether the employer looked at the record.⁵

Credit Checks and Financial History

Virginia does not restrict employment credit checks beyond what federal law requires. The FCRA is the practical constraint. Before pulling a credit report, an employer must give you a clear, standalone written disclosure and get your written authorization.⁶ The disclosure cannot be buried inside an application or mixed with other paperwork. If you don’t sign, the check does not happen.

The same disparate impact analysis applies here. A credit-based policy that disproportionately excludes protected groups can trigger a Title VII claim even when every applicant signed the authorization.

Bankruptcy

If a past bankruptcy filing appears in the report, 11 U.S.C. § 525 offers protection. Government employers cannot deny employment, terminate, or discriminate against someone solely because of a bankruptcy. Private employers face a narrower version of the same rule: they cannot fire or discriminate against a current employee based solely on bankruptcy, and courts have split on whether the private-employer language reaches hiring decisions.⁷ The operative word is “solely.” An employer can still consider other financial factors as long as the bankruptcy itself isn’t the only reason.

Credit Freezes

A security freeze on your credit file may delay a hiring check. Placing and lifting a freeze is free under federal law. You may need to temporarily lift the freeze at whichever bureau the employer’s screening company uses, so it’s worth asking during the process.

Medical Exams and Disability Questions

The Americans with Disabilities Act sets a hard timing rule. Before making a job offer, an employer can ask whether you can perform specific job functions, but cannot ask about disabilities or require a medical exam.⁸

After a conditional offer, the rules loosen. An employer can require a medical exam and ask disability-related questions, but only if everyone entering the same job category faces the same requirement.⁸ If the results lead the employer to withdraw the offer, the decision has to be job-related and consistent with business necessity.⁹

Any medical information collected has to be kept in a separate confidential file. Access is limited to supervisors who need to know about work restrictions or accommodations, safety personnel handling emergencies, and government officials investigating compliance.

Consent, Disclosure, and Adverse Action

Before running any background check through a third-party screening company, an employer has to follow specific FCRA procedures. The disclosure informing you that a check will be conducted must be a standalone written document, not folded into a job application or handbook.⁶ You have to sign a written authorization. The employer also has to certify compliance to the screening company before the report is generated.

Willful FCRA violations carry statutory damages between $100 and $1,000 per violation without any proof of actual harm, plus potential punitive damages and attorney’s fees.¹⁰ Because these cases can be brought as class actions, one procedural mistake applied across hundreds of applicants can become expensive fast.

Pre-Adverse Action Notice

If an employer decides not to hire you (or plans to rescind an offer) based on the report, they cannot act yet. They have to send a pre-adverse action notice that includes a copy of the report and a written summary of your FCRA rights.⁶ The point is to let you review the report and dispute errors before the decision becomes final. The FCRA requires a “reasonable” waiting period without setting an exact number of days. Industry practice treats five business days as the benchmark.

Final Adverse Action Notice

If the employer proceeds after the waiting period, a formal adverse action notice follows. Under 15 U.S.C. § 1681m, that notice has to include:

The name, address, and phone number of the screening company that provided the report
A statement that the screening company did not make the hiring decision and cannot explain it
Notice that you have 60 days to request a free copy of your report from the screening company
Notice of your right to dispute the accuracy of anything in the report

These requirements apply whether the employer is public or private.¹¹ Virginia does not add anything on top of the federal adverse action procedure, but Title VII exposure still applies. An employer who technically follows FCRA steps but rejects every applicant with any record is still vulnerable if the pattern disproportionately affects a protected group.

Cleaning Up Your Record

If something in your history is limiting your job search, Virginia offers several routes to keep it out of employer view.

First-Offender Drug Deferral

Virginia Code 18.2-251 gives first-time drug possession defendants a path that avoids a conviction. If you have no prior drug convictions (other than a prior marijuana possession misdemeanor) and plead guilty or enter a not-guilty plea where the facts support a finding of guilt, the court can defer proceedings and place you on probation instead of entering judgment.¹² Typical conditions include a substance abuse assessment, any recommended treatment, staying drug-free, and community service. Complete everything and the charge gets dismissed, which then makes it eligible for expungement.¹³ Until you actually file for and receive an expungement order, the record can still turn up in court databases.

Expungement

Expungement removes police and court records from public access. Under Virginia Code 19.2-392.2, you can petition if you were acquitted, the charges were dropped or dismissed (including through a nolle prosequi), or you received an absolute pardon for a crime you did not commit.¹⁴ Convictions are not eligible for this process, with a narrow exception for identity theft where someone else was arrested using your name.

You file in the circuit court of the county or city where the case was resolved. Under the July 1, 2026 version of the statute, there are no court fees for petitions based on acquittal or dismissal.¹⁴ The petition has to include the specific charge, date of final disposition, your date of birth, and the name used at arrest, with a copy of the warrant or indictment attached if reasonably available. Once a court grants the order, the records are sealed from public view. Law enforcement and certain government agencies retain limited access, but an employer who knowingly considers an expunged record in a hiring decision faces legal exposure.

The July 1, 2026 Record-Sealing Law

Chapter 23.2 of Title 19.2 takes effect on July 1, 2026, and it is broader than expungement.¹⁵ Sealing can reach actual convictions after a waiting period, where expungement is limited to non-convictions and pardons.

Under Virginia Code 19.2-392.12, you can petition to seal misdemeanors, Class 5 or 6 felonies, and certain larceny offenses where the offense date is on or after January 1, 1986. The court grants sealing only if several conditions are met:

No conviction of a Class 1 or 2 felony, or any felony carrying a life sentence, and any Class 3 or 4 felony conviction must be at least 20 years old.
A clean record for seven years after a misdemeanor or ten years after a felony, measured from the later of dismissal, conviction, or release from incarceration.
Full completion of any probation, restitution, or other court-ordered obligations.

Some records will be sealed automatically without a petition, including former marijuana possession offenses under Virginia Code 19.2-392.6:1.¹⁵ If an older misdemeanor or lower-level felony conviction has been limiting your options, this is the date to mark.¹⁶

1
Virginia Code Commission. Code of Virginia Title 19.2, Chapter 23 – Central Criminal Records Exchange
2
Virginia Code Commission. Code of Virginia 19.2-389.1 – Dissemination of Juvenile Record Information
3
Office of the Law Revision Counsel. 41 US Code 4714 – Prohibition on Criminal History Inquiries by Contractors Prior to Conditional Offer
4
Federal Register. Fair Chance To Compete for Jobs
5
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act
6
Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
7
Office of the Law Revision Counsel. 11 US Code 525 – Protection Against Discriminatory Treatment
8
eCFR. 29 CFR 1630.14 – Medical Examinations and Inquiries Specifically Permitted
9
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA
10
Office of the Law Revision Counsel. 15 US Code 1681n – Civil Liability for Willful Noncompliance
11
Office of the Law Revision Counsel. 15 US Code 1681m – Requirements on Users of Consumer Reports
12
Virginia Code Commission. Code of Virginia 18.2-251 – Persons Charged With First Offense May Be Placed on Probation
13
Virginia Code Commission. Code of Virginia 19.2-298.02 – Deferred Disposition in a Criminal Case
14
Virginia Code Commission. Code of Virginia 19.2-392.2 (Effective July 1, 2026) – Expungement of Police and Court Records
15
Virginia Code Commission. Code of Virginia Title 19.2, Chapter 23.2 – Sealing of Criminal History Record Information and Court Records
16
Virginia Code Commission. Code of Virginia 19.2-392.12 (Effective July 1, 2026) – Sealing of Offenses Resulting in a Deferred and Dismissed Disposition or Conviction by Petition