Virginia’s Clean Slate Law Expands Requirements for Employers Performing Criminal Background Checks

Virginia’s Clean Slate law will take effect on July 1, 2026. Passed in 2025, it imposes new requirements for employers performing background checks in Virginia, a state that historically placed few limitations and restrictions on employers that perform pre- and post-hire criminal screens. The law significantly expands the availability of criminal record sealing for misdemeanor and felony nonconvictions, as well as for certain types of misdemeanor and felony convictions. It also introduces new compliance and notice obligations for employers who inquire about criminal history.

CHANGES TO SEALING STANDARDS

Under the Clean Slate law, records for certain types of offenses will be automatically sealed. Records eligible for automatic sealing include:

• Misdemeanor nonconvictions and felony nonconvictions (i.e., charges resolved in favor of the defendant, except those that result in deferred dismissal);
• Misdemeanor convictions, such as petit larceny, shoplifting, trespassing, distribution of marijuana, and disorderly conduct);
• Convictions for the possession of marijuana; and
• Traffic infractions.

The law also provides that records for offenses not subject to automatic seal may be petitioned for seal. Such offenses include misdemeanor convictions not covered above, certain felony convictions, deferred dismissals, and related ancillary matters. Not available for seal are Class 1, 2, 3, and 4 felonies, violent felonies, felonies involving the use of a firearm, protective order violations, sex crimes and trafficking, date rape drug offenses, hate crimes, election laws, not guilty by reason of insanity dispositions, animal cruelty, dangerous or vicious dogs offenses, and crimes against family or household members and related ancillary matters.

PROHIBITED PRACTICES

The Clean Slate law generally prohibits private employers from requiring an applicant to “disclose information concerning any arrest, charge, or conviction against [the applicant] that has been sealed,” unless a statutory exemption applies.

These exemptions include:

• Applicants for employment or volunteer positions with the Virginia State Police or local police departments or sheriff's offices;
• Positions for which Virginia law requires employers to inquire into sealed records;
• Positions for which federal law requires such inquiries;
• Positions or facilities subject to US national security requirements under federal law, contracts, or executive orders; and
• Positions for which Virginia regulations expressly authorize employers to access sealed records.

PENALTIES & REMEDIES

The law does not create a private right of action or authorize the imposition of civil penalties. However, any person who willfully violates the law is guilty of a Class 1 misdemeanor for each violation. While the statute does not define “willful,” courts generally interpret willful conduct to require an intentional or reckless act.

Accordingly, employers should ensure that hiring personnel and recruiters are trained on the law’s requirements and that their policies and procedures are updated to prevent the intentional solicitation or use of sealed criminal record information except where a statutory exemption applies.

GUIDANCE FOR EMPLOYERS

In advance of the law's effective date, employers hiring in Virginia should update pre-hire questionnaires that inquire about prior or pending arrests, charges, or convictions to instruct Virginia applicants not to disclose information regarding any criminal record that has been sealed.

In addition, employers that fall within one of the Clean Slate law’s statutory exemptions should not assume that the exemption permits unrestricted consideration of sealed criminal records. Rather, employers should carefully evaluate whether the applicable state or federal law actually requires an inquiry into sealed criminal records, as opposed to criminal history more generally. In many cases, the governing law may require a criminal history review without expressly authorizing or requiring consideration of records that have been sealed under Virginia law.

Employers should likewise exercise caution before relying on sealed information when making employment decisions. If an employer learns that a record has been sealed, and the applicable federal or state law does not expressly require an adverse employment action based on that record, the employer should carefully consider whether continued reliance on the sealed information is appropriate. Once the employer has confirmed that the offense or record has been sealed, it should avoid basing an adverse employment decision on that information unless another applicable legal requirement mandates that result.

These compliance measures will not only reduce risk in Virginia once the law takes effect, but are also advisable in other jurisdictions, including California and New York, where employers are similarly prohibited from considering sealed or otherwise protected criminal records unless state or federal law expressly requires or authorizes such consideration.

As clean slate and record-sealing laws continue to expand across the United States, employers (particularly those operating nationally or in regulated industries) should ensure that their background screening and adjudication policies comply with the laws in effect in the jurisdictions in which they hire.