When employers make background checks, state and federal laws limit what they can look for. Background checks in Virginia are covered by federal and state laws on how to check an individual's criminal record and who has the right to know that information. The laws are found in sections 19.2-392.02 and 19.2-389 of the state legal code.
Virginia statutes require organizations that work with children, the elderly or the disabled to conduct criminal background checks on potential employees to determine if they've been convicted of crimes that disqualify them for the job. A new agency must do this for its entire staff. The job candidate must get fingerprinted, tell his prospective employer if he has a criminal record and give consent for the background check. The law also gives the applicant the right to see a copy of any negative report and challenge inaccurate information.
Virginia maintains a central criminal-record database, and the law spells out who can request access for records: Nursing homes, school boards and child welfare groups vetting employees, behavioral researchers and several other categories. The state police can't share everything in the database; instead, they're limited to giving out information relevant to the request. The police are forbidden from providing information from the database to anyone not authorized by state law; the police cannot even confirm whether a criminal record exists.
The federal Fair Credit Reporting Act also sets limits on Virginia background checks, but only if they're conducted by third parties; it doesn't affect employers who conduct them in-house. The act lists information that cannot be reported, such as bankruptcies older than 10 years and negative information older than seven years. Criminal convictions can be reported no matter how old they are, but arrest records older than seven years cannot be included in a background check.
In addition to the Fair Credit Reporting Act, other federal laws constrain what Virginia employers can ask about. Businesses can't ask for medical records, though they can check whether an applicant is physically qualified for particular tasks. Details of military service beyond name, rank, salary and assignments are usually kept private. The Nolo legal website recommends that businesses not ask for more information than they really need to avoid any breaches of the law.
- Virginia Legislative Information System: Section 19.2-392.02
- Virginia Legislative Information System: Section 63.2-1721
- Virginia Legislative Information System: Section 19.2-389
- Privacy Rights Clearinghouse: Employment Background Checks -- A Jobseeker's Guide
- Nolo: Running Background Checks on Job Applicants