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Legal Insider: Virginia Joins ‘Ban the Box’ Movement

by John V. Berry April 20, 2015 at 11:00 am 7 Comments

Berry&BerryRevised 

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Reston Town Center that specializes in federal employee, security clearance, retirement, and private sector employee matters.

On April 3, the Virginia Gov. Terry McAuliffe took the first steps, at the state level, to “Ban the Box” for individuals applying for state employment positions by signing Virginia Executive Order 41. “Ban the Box” is a reference to a movement seeking to ensure fairness for individuals previously arrested or convicted of a crime from being automatically disqualified for employment.

According to the Wall Street Journal, nearly one out of every three adults in the United States has a prior arrest or conviction on file with the Federal Bureau of Investigation. The “Ban the Box” movement attempts to stop employers from using initial background checks to screen out applicants before those applicants have the opportunity to show that they can perform the position.

Such checks have created significant obstacles for individuals, even with minor arrests or convictions, to obtain employment. Essentially, once an individual has checked the box on a job application indicating that he or she had previously been arrested or convicted, the applicant often finds that the application was automatically rejected.

According to the National Employment Law Project, 15 states and 100 cities or counties now have “Ban the Box”-type restrictions in place. Virginia is the latest to implement such a restriction on a statewide level. Executive Order 41 implements a “Ban the Box” policy for those individuals seeking state employment and ensures that the Department of Human Resource Management takes the following actions:

  1. Amend the state employment application to remove questions relating to convictions and criminal history;
  2. Inform all state executive hiring authorities that state employment decisions will not be based on criminal history unless clearly job-related and consistent with business necessity or where state or federal law prohibits hiring an individual with certain convictions for a particular position;
  3. Instruct state agencies to ensure that any criminal history check is conducted only after a candidate has been found otherwise eligible for the position and signed an appropriate release; and
  4. Identify sensitive state employment positions where initial disclosure of criminal history will still be required.

Executive Order 41 only applies to state employment, not positions in the private sector. However, it is likely only a matter of time before such laws are eventually enacted more broadly.  At the city/county level, a number of Virginia counties have also passed “Ban the Box” rules for county employees, including, but not limited to, Arlington, Alexandria, Fairfax, Richmond, Newport News, and Norfolk.

We represent employees and employers in employment law matters.  If you need assistance with an employment law issue, please contact our office at (703) 668-0070 or at www.berrylegal.com to schedule a consultation.  Please also visit and like us on Facebook at www.facebook.com/BerryBerryPllc.

  • Ming the Merciless

    Fairness, pah. It is perfectly fair, if one is choosing between otherwise identical potential employees, to prefer the one who is not a criminal.

    • Chuck Morningwood

      The question is, how many applicants does one get for a job where the sole distinction is that they’ve be convicted of a crime?

      I do believe that the circumstances of the individual should dictate whether or not they are eliminated from consideration. Child molesters shouldn’t be considered for jobs in daycare centers and embezzlers should be allowed to work in jobs involving cash handling. But, all things being equal, if they were reversing the positions, should they necessarily be disqualified.

      And, if you’re going to allow people to be disqualified from employment — any employment — just because they’ve been convicted of a crime, that would certainly seem to argue that the only choices for the convicted is either a life of crime or a life on the dole since they can’t get legitimate employment otherwise.

      • Ming the Merciless

        I did not say they should be disqualified. The employer should be given full information and allowed to decide on that basis. If they choose not to employ the criminal, so be it.

        I call this the “fairness to employers, customers and coworkers” rule.

        • Chuck Morningwood

          But employers are still able to do this after the initial application. They can still ask the question in the interview and they can still request a criminal background check, and they can still decline the applicant based on their arrest and conviction record.

          It’s that they won’t be allowed to put the question on the application. If they’re going to decline to interview an applicant, it won’t be because the applicant has a police record.

          • Ming the Merciless

            The purpose of application forms is to allow the employer to do an initial screening. There is no good reason not to put the criminal record question on there. If employers want to screen them out for that, so be it. Declining to interview someone because they have a police record is perfectly acceptable practice.

  • Mike M

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  • Michael P. McHugh

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