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Virginia Background Check Laws

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Virginia Employment Screening laws

Employers that are either located in Virginia or hiring Virginia residents must abide by the Federal FCRA, and applicable Virginia state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Virginia state laws. This page also contains steps an end-user must take to stay in compliance with Virginia state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on Virginia state laws, please consult your legal counsel.

Background Check Law Ban the Box Law Court Fee Court Cases Summary of Rights

Employment Background Check Laws In Virginia:

Code of Virginia § 19.2-392.4: Prohibited practices by employers, educational institutions, agencies, etc., of state and local governments.

A. An employer or educational institution shall not, in any application,interview, or otherwise, require an applicant for employment or admission todisclose information concerning any arrest or criminal charge against himthat has been expunged. An applicant need not, in answer to any questionconcerning any arrest or criminal charge that has not resulted in aconviction, include a reference to or information concerning arrests orcharges that have been expunged.

B. Agencies, officials, and employees of the state and local governmentsshall not, in any application, interview, or otherwise, require an applicantfor a license, permit, registration, or governmental service to discloseinformation concerning any arrest or criminal charge against him that hasbeen expunged. An applicant need not, in answer to any question concerningany arrest or criminal charge that has not resulted in a conviction, includea reference to or information concerning charges that have been expunged.Such an application may not be denied solely because of the applicant’srefusal to disclose information concerning any arrest or criminal chargeagainst him that has been expunged.

C. A person who willfully violates this section is guilty of a Class 1misdemeanor for each violation.

Ninja's summary

Employers may not require an applicant to disclose any arrest or conviction that has been expunged.

Code of Virginia § 40.1-28.7:5: Social media accounts of current and prospective employees.

A. As used in this section:

“Employer” includes, in addition to the persons enumerated in the definition of employer in § 40.1-2, (i) any unit of state or local government and (ii) any agent, representative, or designee of a person or unit of government that constitutes an employer.

“Social media account” means a personal account with an electronic medium or service where users may create, share, or view user-generated content, including, without limitation, videos, photographs, blogs, podcasts, messages, emails, or website profiles or locations. “Social media account” does not include an account (i) opened by an employee at the request of an employer; (ii) provided to an employee by an employer such as the employer’s email account or other software program owned or operated exclusively by an employer; (iii) set up by an employee on behalf of an employer; or (iv) set up by an employee to impersonate an employer through the use of the employer’s name, logos, or trademarks.

B. An employer shall not require a current or prospective employee to:

1. Disclose the username and password to the current or prospective employee’s social media account; or

2. Add an employee, supervisor, or administrator to the list of contacts associated with the current or prospective employee’s social media account.

C. If an employer inadvertently receives an employee’s username and password to, or other login information associated with, the employee’s social media account through the use of an electronic device provided to the employee by the employer or a program that monitors an employer’s network, the employer shall not be liable for having the information but shall not use the information to gain access to an employee’s social media account.

D. An employer shall not:

1. Take action against or threaten to discharge, discipline, or otherwise penalize a current employee for exercising his rights under this section; or

2. Fail or refuse to hire a prospective employee for exercising his rights under this section.

E. This section does not prohibit an employer from viewing information about a current or prospective employee that is publicly available.

F. Nothing in this section:

1. Prevents an employer from complying with the requirements of federal, state, or local laws, rules, or regulations or the rules or regulations of self-regulatory organizations; or

2. Affects an employer’s existing rights or obligations to request an employee to disclose his username and password for the purpose of accessing a social media account if the employee’s social media account activity is reasonably believed to be relevant to a formal investigation or related proceeding by the employer of allegations of an employee’s violation of federal, state, or local laws or regulations or of the employer’s written policies. If an employer exercises its rights under this subdivision, the employee’s username and password shall only be used for the purpose of the formal investigation or a related proceeding.

Ninja's summary

Employers may not directly or indirectly require an applicant or an employee to disclose their login credentials that provides access to their social media accounts. Employers are also prohibited from requiring an employee add an employee, supervisor, or administrator, to the list of contacts associated with the employee’s social media accounts.

Update: Feb 2018

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Virginia Ban the Box

Commonwealth of Virginia Office of the Governor Executive Order 41 (2015): Implementation Of “Ban the Box” Hiring Policies in the Commonwealth.

Public employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has been determined to be qualified or is being considered for a specific position.

A copy of the executive order can be found at- https://governor.virginia.gov/media/3762/eo-41-ban-the-boxada.pdf


Update: Feb 2018

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

County: Court Fee:
Accomack $0.00
Albemarle $0.00
Alexandria City $0.00
Alleghany $0.00
Amelia $0.00
Amherst $0.00
Appomattox $0.00
Arlington $0.00
Augusta $0.00
Bath $0.00
Bedford $0.00
Bedford City $0.00
Bland $0.00
Botetourt $0.00
Bristol $0.00
Brunswick $0.00
Buchanan $0.00
Buckingham $0.00
Buena Vista City $0.00
Campbell $0.00
Caroline $0.00
Carroll $0.00
Charles City $0.00
Charlotte $0.00
Charlottesville City $0.00
Chesapeake City $0.00
Chesterfield $0.00
Clarke $0.00
Clifton Forge City $0.00
Colonial Heights City $0.00
Covington City $0.00
Craig $0.00
Culpeper $0.00
Cumberland $0.00
Danville City $0.00
Dickenson $0.00
Dinwiddie $0.00
Emporia City $0.00
Essex $0.00
Fairfax $0.00
Fairfax City $0.00
Falls Church City $0.00
Fauquier $0.00
Floyd $0.00
Fluvanna $0.00
Franklin $0.00
Franklin City $0.00
Frederick $0.00
Fredericksburg City $0.00
Galax City $0.00
Giles $0.00
Gloucester $0.00
Goochland $0.00
Grayson $0.00
Greene $0.00
Greensville $0.00
Halifax $0.00
Hampton City $0.00
Hanover $0.00
Harrisonburg City $0.00
Henrico $0.00
Henry $0.00
Highland $0.00
Hopewell City $0.00
Isle Of Wight $0.00
James City $0.00
King And Queen $0.00
King George $0.00
King William $0.00
Lancaster $0.00
Lee $0.00
Lexington City $0.00
Loudoun $0.00
Louisa $0.00
Lunenburg $0.00
Lynchburg City $0.00
Madison $0.00
Manassas City $0.00
Manassas Park City $0.00
MARTINSVILLE CITY $0.00
Mathews $0.00
Mecklenburg $0.00
Middlesex $0.00
Montgomery $0.00
Nansemond $0.00
Nelson $0.00
New Kent $0.00
Newport News City $0.00
Norfolk City $0.00
Northampton $0.00
Northumberland $0.00
Norton City $0.00
Nottoway $0.00
Orange $0.00
Page $0.00
Patrick $0.00
Petersburg City $0.00
Pittsylvania $0.00
POQUOSON CITY $0.00
Portsmouth City $0.00
Powhatan $0.00
Prince Edward $0.00
Prince George $0.00
Prince William $0.00
Pulaski $0.00
Radford $0.00
Rappahannock $0.00
Richmond $0.00
Richmond City $0.00
Roanoke $0.00
Roanoke City $0.00
Rockbridge $0.00
Rockingham $0.00
Russell $0.00
Salem $0.00
Scott $0.00
Shenandoah $0.00
Smyth $0.00
Southampton $0.00
Spotsylvania $0.00
Stafford $0.00
STAUNTON CITY $0.00
SUFFOLK CITY $0.00
Surry $0.00
Sussex $0.00
Tazewell $0.00
Virginia Beach City $0.00
Warren $0.00
Washington $0.00
WAYNESBORO CITY $0.00
Westmoreland $0.00
WILLIAMSBURG CITY $0.00
WINCHESTER CITY $0.00
Wise $0.00
Wythe $0.00
York $0.00

Virginia Consumers Have the Right to Obtain a Security Freeze.

You have a right to place a "security freeze" on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. A security freeze must be requested in writing by certified mail. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that using a security freeze to take control over who gets access to the personal and financial information in your credit report may delay, interfere with, or prohibit the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, government services or payments, rental housing, employment, investment, license, cellular phone, utilities, digital signature, Internet credit card transaction, or other services, including an extension of credit at point of sale. When you place a security freeze on your credit report, you will be provided a personal identification number or password to use if you choose to remove the freeze on your credit report or authorize the release of your credit report for a period of time or for a specific party after the freeze is in place. To provide that authorization you must contact the consumer reporting agency and provide all of the following:

  1. The personal identification number or password;
  2. Proper identification to verify your identity; and
  3. The proper information regarding the period of time or the specific party for which the report shall be available.

A consumer reporting agency must authorize the release of your credit report no later than three business days after receiving the above information. After September 1, 2008, a consumer credit reporting agency must authorize the release of your credit report no later than 15 minutes after receiving the request.

A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account that requests information in your credit report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements.

You have a right to bring civil action against anyone, including a consumer reporting agency, who improperly obtains access to a file, knowingly or willfully misuses file data, or fails to correct inaccurate file data.

Unless you are a victim of identity theft with a police report to verify the crimes, a consumer reporting agency has the right to charge you up to $10 to place a freeze on your credit report.

KEY COURT DECISIONS
Court Case Issue Outcome Employer Limitation/ Action

Manuel v. Wells Fargo Bank (2015)

Wells Fargo inserted a waiver of liability at the bottom of a disclosure form that informed applicants that a background screening report would be procured. Wells Fargo also did not take proper adverse action when labeling applicants as “ineligible” upon receipt of their report. This was done before sending a pre-adverse action letter, resulting in non-compliance with proper adverse action procedures required by the FCRA.

Settlement. Wells Fargo moved for Summary Judgment claiming that the liability waiver used at the bottom of the disclosure form was proper, and that it was their vendor, First Advantage, that did not adhere to the adverse action process, not Wells Fargo. The Court denied their motion for Summary Judgment. The Court held that the plaintiff suffered the injury of not receiving the information they should have because the liability waiver and the disclosure were on one form. In regards to the Adverse Action process, the Court held that Wells Fargo effectively took adverse action against the applicant upon receiving the label of “ineligible” and they had immediately intended not to hire the individual. When Wells Fargo received the label of “ineligible,” they essentially made their adverse hiring decision without following the adverse action process. Notifying their vendor, First Advantage, to send out the pre-adverse action and adverse action letters, after making a firm decision to not hire the applicant, is in violation of the adverse action procedure set forth by the FCRA.

Employers must ensure that their disclosure and authorization forms are separate documents that do not include any other forms or language pertaining to any other type of document. Courts agree that the disclosure and authorization form must be completely separate from everything else. Applicants have a right to information, and combining forms or adding language not necessary to the disclosure and authorization is strictly prohibited. Additionally, the employer must ensure that they strictly adhere to the adverse action process. The Court notes that employers may not simply just inform their vendors to send out adverse action notices. Employers must still abide by the standards set forth in the FCRA.

Henderson v. Corelogic Nat’l Background Data, LLC (2016)

When providing criminal history information to be used on a background screening report, Corelogic National Background Data (also known as “NBD”) did not propery follow the procedures set forth in section 613. Section 613 states that a CRA must either; (1) notify the consumer that negative information has been found on them and that notification must also include the name and address of the person who will be receiving that information, or (2) the CRA must maintain strict procedures that ensures the accuracy and timeliness of the information collected.

Settlement. This class action suit was settled despite the Court denying the plaintiff’s motion for renewing class certification. The Court notes that neither Corelogic National Background Data (NBD), or the recipients of their information (ADP, HR Plus, and Verifications Inc), meet the standard set forth by section 613 of the FCRA. These entities did not verify the information received, nor did they notify the consumer that negative information was found on them. This amounts to non-compliance of the FCRA.

Employers should vet the CRA whose services they use to ensure that they strictly adhere to maintaining procedures to ensure maximum possible accuracy. Consumer Reporting Agencies must follow the standards set forth by section 613 of the FCRA. The CRA procuring information on consumer must either; (1) notify the consumer that negative information has been found on them and that notification must also include the name and address of the person who will be receiving that information, or (2) the CRA must maintain strict procedures that ensures the accuracy and timeliness of the information collected.

Henderson v. First Advantage Background Services Corp. (2015)

The consumer reporting agency did not adhere to the dispute and reinvestigation procedures set forth in section 1681i because they made it too difficult for an applicant to initiate a dispute.

Settlement. The consumer reporting agency’s procedure for an applicant to initiate a dispute was too difficult because they were requiring the disputing applicant to fill out a specific dispute form as well as provide valid government identification. Applicants seeking to dispute inaccurate information were denied their right to dispute inaccurate information if they did not follow those two procedures. Additionally, the CRA was taking longer than 30 days to perform their reinvestigations. This scenarios amount to a breach of section 1681i and the reinvestigation standards required by the FCRA.

Consumer reporting agencies cannot make it overly difficult for an applicant to dispute inaccuracies on their consumer report. Doing so is in violation of the FCRA. Applicants have the right to dispute inaccuracies in their consumer report, and the CRA must perform the reinvestigation within 30 days of the applicant notifying the CRA of their dispute.

Thomas v. FTS USA, LLC

Plaintiff claims that he was wrongfully terminated due to inaccuracies within his background screening report and he was not allowed to correct those inaccuracies, which violates proper adverse action procedures under the FCRA. Furthermore, it was found that FTS USA never provided the proper summary of rights, disclosure and authorization forms to current or prospective employees. FTS USA was under the impression their vendor would do so.

Certified Class Action. Thomas is the lead plaintiff in this class action lawsuit.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

Milbourne v. JRK Residential America

Plaintiff claims that JRK Residential America did not follow proper disclosure and authorization procedures as set forth by the FCRA. The disclosure form did not consist of solely the disclosure and included extraneous langauge amounting to a liability waiver.

Certified Class Action. Milbourne was the lead plaintiff in this class action lawsuit. Summary Judgment for Plaintiff was GRANTED by the Court.

Employers must ensure they follow strict procedures complying with the FCRA’s requirements for disclosure and authorization as well as adverse action.

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