Virginia employers who run background checks sit under two layers of rules. The federal Fair Credit Reporting Act sets the baseline for any employer anywhere in the country that uses a consumer reporting agency to screen applicants or employees. On top of that, Virginia has its own statutes covering who can get a state police criminal history record, what state agencies may ask on an application, when a sealed record can be considered, and how lawful marijuana use intersects with employment decisions. This guide walks through both layers so a hiring team can see where federal duties end and state specific rules begin. It is general information, not legal advice, and employers with a specific fact pattern should talk to counsel.
The FCRA baseline that applies in every state, including Virginia
When a Virginia employer orders a background check through a consumer reporting agency rather than doing the digging itself, the Fair Credit Reporting Act’s permissible purpose and disclosure section controls. In practice that means a few fixed steps before and after the report is pulled.
- A clear, standalone written disclosure to the applicant that a consumer report may be obtained for employment purposes, separate from the rest of the application packet.
- Written authorization from the applicant before the report is requested.
- A pre-adverse action notice, a copy of the report, and the Consumer Financial Protection Bureau’s Summary of Rights, sent before the employer acts on anything negative in the report, as described in the adverse action section of the FCRA.
- A waiting period that gives the applicant a real chance to dispute inaccurate information before a final decision.
- A final adverse action notice if the employer still decides not to hire, promote, or retain the person, again citing the source of the report and the applicant’s FCRA rights.
The Consumer Financial Protection Bureau’s implementing rule, Regulation V, fills in details on how consumer reporting agencies and users of reports, including employers, must handle accuracy and disclosure obligations under the Code of Federal Regulations, Title 12, Part 1022. None of this is unique to Virginia. It applies the same way whether the job is in Richmond, Roanoke, or anywhere else in the country.
Getting a criminal history record from Virginia State Police
Virginia keeps its central repository of criminal history record information with the Virginia State Police. The dissemination rules are set out in Code of Virginia section 19.2-389, which lists exactly which categories of employer and agency may receive criminal history information and for what purpose, and requires that the information be limited to that purpose and not passed along further. Many of the employer categories under that statute, such as positions with direct access to children, the elderly, or patients, require a name based or fingerprint based check processed through the State Police rather than an ordinary commercial database pull. Employers who need an official state record check, including the fingerprint based option used for licensed and regulated positions, can start at the State Police’s own criminal history record check services page. A commercial consumer report and an official State Police record are not the same product, and some Virginia licensing or regulatory rules specifically require the latter.
Ban the box for state agencies and localities
Virginia’s own public employers, not private businesses generally, are the ones directly restricted on when they can ask about arrests or convictions. Lawmakers wrote this into the Code of Virginia through House Bill 757, which built on an earlier executive directive to state agencies. The measure, which the General Assembly passed and which took effect on July 1, 2020, prohibits a state agency or locality from asking on an initial employment application whether an applicant has ever been arrested, charged, or convicted of a crime. A state agency or locality may still ask about criminal history later, during or after an interview, and the restriction does not apply to law enforcement positions, state agency positions designated as sensitive, or any application where a federal or state law specifically allows the question. Private Virginia employers are not covered by this particular statute, so a private company may generally ask about criminal history earlier in its own process, though it still has to apply the FCRA correctly if it uses a third party report to do the screening.
Sealed records: what changed and what an employer can still see
Virginia significantly expanded its criminal record sealing framework with legislation enacted in 2025. The Code of Virginia’s sealing chapter, including section 19.2-392.5‘s definitions and section 19.2-392.13‘s access rules, lets a person deny or decline to disclose a sealed arrest, charge, or conviction to most employers once a court has sealed it. A sealed record generally will not surface on a routine background check once sealing takes effect. The statute carves out specific exceptions where an employer may still see or ask about a sealed record, including law enforcement hiring, emergency medical services positions, Department of Forensic Science employment, certain federal motor carrier safety compliance checks, and situations where state or federal law requires the inquiry. Background screening companies themselves face their own restrictions on accessing or reporting sealed information outside those same purposes. Because sealing works differently from expungement, which removes a record for people found not guilty or against whom charges were dropped, employers should not assume the two terms mean the same thing when they get results back from a screening provider.
Marijuana and employment decisions
Virginia law also limits how an employer may treat certain lawful marijuana related activity. Code of Virginia section 40.1-27.4 generally bars an employer from discharging, disciplining, or discriminating against an employee for the lawful use of cannabis oil under a valid written certification from a practitioner. The protection does not extend to an employee who is impaired by the substance at work or who possesses it during working hours, and it does not apply where following the state rule would cause the employer to lose a federal contract or federal funding, or would otherwise conflict with federal law. Defense industrial base employers have their own carve out tied to specific drug test thresholds. This statute is narrower than a general legalization of recreational use in the workplace, and employers who are unsure how it interacts with a specific drug testing policy may want to consult counsel before changing a practice.
What typically can be reported and when
| Topic | Federal FCRA rule | Virginia specific rule |
|---|---|---|
| Disclosure and authorization | Standalone written disclosure and signed authorization required before ordering a report | No additional state form; follow the federal standard |
| Criminal record source | Consumer reporting agency compiles records from available sources | Official State Police record requires fingerprint or name based request under section 19.2-389 for covered positions |
| Timing of criminal history question | Not addressed by the FCRA | State agencies and localities may not ask on the initial application under House Bill 757; private employers are not covered by this rule |
| Sealed records | Not addressed by the FCRA | Generally not reportable once sealed, subject to specific statutory exceptions under the 2025 sealing chapter |
| Expunged records | Not addressed by the FCRA | Removed from public record; treated differently than sealing |
| Marijuana (medical, certified use) | Not addressed by the FCRA | Adverse action generally restricted under section 40.1-27.4, with impairment and federal contract exceptions |
| Adverse action notices | Pre-adverse and final adverse action notices required | No separate Virginia notice requirement beyond the federal steps |
The FCRA steps, in order
For any Virginia employer using a consumer reporting agency, the sequence generally looks like this: provide the standalone disclosure, get written authorization, order the report, review it fairly against the job, send a pre-adverse action notice with a copy of the report and the Summary of Rights before acting, give the applicant a reasonable chance to respond, and only then send a final adverse action notice if the decision stands. The Equal Employment Opportunity Commission’s guidance on arrest and conviction records adds a separate layer on top of this timeline: even when a record is legally reportable under the FCRA and under Virginia law, using it to deny employment can still raise discrimination concerns if the employer does not consider the nature of the offense, how much time has passed, and its relevance to the job. Employers may want to build that individualized review into the adverse action step rather than treating any criminal record as an automatic disqualifier.
Practical takeaways
A background check will not show the same thing in every case, and Virginia law and federal law do not always point to the same answer. A sealed or expunged record generally will not appear and should not be used, a record inquiry on a state agency’s initial application form may itself be the problem rather than the record, and lawful certified marijuana use is not supposed to be held against an employee absent impairment or a federal conflict. None of this changes the core FCRA sequence: disclose, authorize, notify before acting, and notify again after. Employers building or auditing a Virginia screening program may also want to review how they handle ban the box and fair chance rules generally, since several other states follow a similar pattern to Virginia’s state agency restriction. A background check provider such as Reveal Background can help structure the FCRA side of the process, though the employer remains responsible for how it applies Virginia specific rules to its own hiring decisions.
Frequently asked questions
Does Virginia law stop private employers from asking about criminal history on a job application?
No. The ban the box restriction under House Bill 757 applies to state agencies and localities, not to private employers generally. A private Virginia employer may still ask about criminal history earlier in the hiring process, subject to any FCRA duties that apply once it uses a third party consumer report.
Can a Virginia employer get an official State Police criminal history record instead of a commercial background check?
Yes, for many positions. Virginia State Police processes name based and fingerprint based criminal history record checks for employers and licensing purposes allowed under Code of Virginia section 19.2-389. Some licensed and regulated positions in Virginia specifically require this official record rather than a standard commercial report.
Will a sealed criminal record show up on a background check in Virginia?
Generally, no, once a court has sealed the record under Virginia’s sealing statutes, it is not supposed to be disclosed to most employers or appear on a routine report. There are specific statutory exceptions, including certain law enforcement, emergency services, and federally required screenings, so the answer can vary by position.
Can a Virginia employer fire someone for medical marijuana use shown on a drug test?
Virginia law under Code of Virginia section 40.1-27.4 generally restricts discharging or disciplining an employee for lawful use of cannabis oil under a valid written certification, but it does not protect workplace impairment or possession during work hours, and it does not apply where it would conflict with federal law or a federal contract. Employers facing this situation may want to review the statute’s specific exceptions with counsel.
Is a background check in Virginia the same thing whether it is a State Police record or a consumer reporting agency report?
No. A State Police record check draws directly from the state’s central criminal history repository and is generally required for specific licensed or sensitive positions. A consumer reporting agency report compiled for employment purposes is governed by the FCRA, including its disclosure, authorization, and adverse action steps, and may draw on different sources depending on the provider and the search ordered.
This article is general information about Virginia and federal background check law, not legal advice. Employers should consult qualified counsel about how these rules apply to a specific hiring decision.
