On April 3, Virginia Governor Terry McAuliffe issued Executive Order #41, thereby adding Virginia to the growing list of jurisdictions (including California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Rhode Island, Washington, D.C., and more than 100 cities and counties) that have “banned the box” and excluded and/or limited the use of criminal background checks in hiring for certain jobs.
As drafted, Executive Order #41 applies only to “agencies, boards and commissions within the executive branch of [state] government,” and requires removal of questions relating to convictions and criminal history from state employment applications. The text of the Order, however, encourages private employers to adopt “similar hiring practices,” and signals that legislation affecting the commonwealth’s private employers may be next.
While Executive Order #41 does not currently impact private employers, Virginia employers should begin evaluating whether the use of criminal background information for employment purposes is appropriate for their organizations, including whether the benefits of such practices are worth the risks in the current political environment. Given the EEOC’s current position that use of criminal background information to screen job applicants may violate Title VII, waiting for mandatory “ban the box” legislation to consider the issue may not be prudent.