As previously discussed in a September 5, 2014 Legal Alert, the movement to limit the extent to which employers may request and
consider applicants’ and employees’ criminal histories continues to gain momentum. In the last few months, Georgia, Ohio, Vermont and Virginia have
restricted inquiries into criminal backgrounds for applicants to state employment, underscoring the need for employers to remain vigilant on requirements
in jurisdictions where they operate that may extend to private entities. The following is a summary of recent developments.
On February 23, 2015, by executive order, Georgia Governor Nathan Deal removed questions regarding applicants’ criminal histories from all state employment
applications. The executive order states that inquiries regarding a potential employee’s criminal history may not occur until after the initial portion of
the employment application process. Moreover, the executive order prohibits the use of an applicant’s criminal history as an “automatic bar” to state
employment and provides a qualified applicant the opportunity to contest his or her criminal history and submit information about rehabilitation.
According to the Ohio Department of Administrative Services, effective June 1, 2015, Ohio governmental agencies may no longer include questions on their
applications requiring applicants to disclose felony convictions. Applicants will be asked about such convictions only if they are interviewed, at which
point they will be permitted to explain the circumstances of any offense. Finalists for a position may be subjected to criminal background checks.
On April 21, 2015, Vermont Governor Peter Shumlin signed an executive order eliminating criminal background inquiries in state employment applications. The
executive order requires the Vermont Department of Human Resources to create and implement a “ban the box” policy that provides qualified applicants the
opportunity to explain their criminal histories when applying for state positions. The executive order also prohibits the automatic exclusion of candidates
based on criminal histories.
On April 3, 2015, Virginia banned the box for state employment applications through an executive order as well, removing criminal history inquiries from
state employment applications. For state employment in Virginia, an applicant will be required to disclose criminal history only after he or she: (1) has
signed the appropriate waiver authorizing release, (2) has been found otherwise eligible for the position, and (3) is being considered for a specific
position. Employment decisions can be based on criminal history only where the decision to do so is “demonstrably job-related and consistent with business
necessity, or state or federal law prohibits hiring an individual with certain convictions for a particular position.”
Although these new developments apply only to state employment, they highlight the growing popularity of “ban the box” initiatives and likely foreshadow
continued growth into the private sector. Employers should stay abreast of changes to the laws in the jurisdictions in which they operate and routinely
review their hiring practices and applications to ensure compliance with federal, state and local laws. Depending on the law of the locations where
operations and hiring occur, employers also may want to consider: (1) removing criminal history questions for all applications and sites, or (2) creating
tailored applications (and procedures) to be used in certain jurisdictions
For questions regarding the status of “ban the box” laws in your area of
operation or assistance in ensuring day-to-day compliance, please reach out
to your McGuireWoods contact, the authors or any other member of the firm’s
labor and employment group.