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Virginia Enacts “Ban the Box” Legislation for Marijuana Possession Arrests, Charges, and Convictions

As we have previously reported herehere, and here, Virginia has enacted several new labor and employment laws that are poised to dramatically change the legal landscape for employers in Virginia.  In addition to the laws discussed above, Virginia has also enacted “ban the box” legislation for simple possession of marijuana.

On May 21, 2020, Governor Ralph Northam signed a bill decriminalizing simple possession of marijuana.  Though possessing marijuana in Virginia remains unlawful, the new law only provides a civil penalty of $25.  The new law takes effect on July 1, 2020.

In addition to decriminalizing possession of marijuana, the new law prohibits employers from requiring job applicants to disclose any information regarding an arrest, criminal charge, or conviction for simple possession of marijuana, and the new law gives applicants a statutory right to refuse to answer any questions or provide any information concerning any such arrest, criminal charge, or conviction.

Though the new law does not appear to provide applicants with a private cause of action, Virginia employers are subject to criminal penalties if they willfully violate the new law.  Under the new law, any individual who willfully violates these prohibitions could be charged with a Class 1 misdemeanor for each violation—which would carry fines and possible jail time.

Given these changes—including the risk of potential criminal prosecution—employers in Virginia should review and revise their job applications and hiring practices to ensure that they do not require an applicant to disclose any arrests, criminal charges, and/or convictions for simple possession of marijuana.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 162

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Tyler S. Laughinghouse Employment Lawyer Hunton AK

Tyler’s practice focuses on labor and employment law, including counseling, litigation and regulatory advice.

Tyler has developed an extensive wage and hour practice, defending clients in nationwide class action lawsuits under the FLSA and state overtime laws. He also has significant experience handling employment discrimination cases, reviewing and drafting employee applications and handbooks, and counseling employers on their obligations under various state and federal employment and traditional labor laws. Tyler also has experience with...

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Ryan A. Glasgow Employment Lawyer Hunton AK

Ryan represents employers and executives in labor matters and complex employment litigation and provides strategic labor and employment advice.

Ryan’s labor and employment litigation experience is both broad and deep, and he is particularly skilled in defending employers against wage and hour class and collective actions. Ryan has been involved in over thirty-five of these cases, along with numerous other single plaintiff wage and hour matters, throughout the country. He has achieved success for his clients in many of these cases, including on...

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Sharon S. Goodwyn Labor & Employment Attorney Hunton Andrews Kurth Law Firm Norfolk, VA

Sharon’s practice focuses on employment advice and counseling, and the defense of employment cases before administrative agencies and in federal and state courts.

Sharon represents employers in a wide range of labor and employment issues. She counsels employers on compliance with federal and state labor and employment laws, represents employers in administrative proceedings before federal and state agencies, including the Equal Employment Opportunity Commission, Department of Labor, and National Labor Relations Board, and in employment...