September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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Virginia Governor’s Order “Encourages” Private Employers to “Ban the Box”

Last week, Virginia Governor Terrence McAuliffe signed an executive order “banning the box” on most state employment applications and “encouraging” private employers and government contractors to do the same.  “Ban the box” refers to a legislative and executive trend across the country requiring or encouraging employers to delete the “check box” on job applications asking whether a candidate has a criminal history.

Ban the boxVirginia becomes only the second Southern state to “ban the box” for public employers, continuing a movement that has increasingly broad geographic and political support.  To date, approximately 15 states and 100 localities have “banned the box.”  Though many of these laws only apply to public employers, 6 states and 12 localities have “banned the box” for private employers and several more jurisdictions have adopted or encouraged the policy for contractors.

It bears mention that the Virginia order not only “bans the box,” but also provides that decisions based on criminal history should be “job-related and consistent with business necessity.”  The Equal Employment Opportunity Commission (EEOC) has urged a similar “individualized assessment” of candidates with criminal histories and a growing number of state and local laws have required or encouraged the same for public and private employers alike.

Given these trends, employers across the country should continue to monitor developing law and make any necessary changes to their background check policies and procedures.

© 2020 Proskauer Rose LLP. National Law Review, Volume V, Number 96


About this Author

Daniel L Saperstein, Proskauer Law Firm, Labor Employment Attorney

Daniel L. Saperstein is an Associate in the Labor & Employment Law Department, resident in the Newark office. He is a member of the Employment Litigation & Arbitration, Labor-Management Relations, Employment Law Counseling & Training, International Labor & Employment, and Whistleblower & Retaliation Groups, as well as the Dodd-Frank Task Force.