Virginia employers have long treated criminal background checks as a routine part of hiring: obtain the applicant’s authorization, order a background report, review the results, and decide whether any criminal history is relevant to the position. Virginia’s new “Clean Slate” framework changes that process in an important way. This article continues our series addressing the rapidly changing employment-law landscape confronting Virginia businesses. For employers that use criminal background checks, the Clean Slate law requires attention to applications, interview practices, recruiter training, and background-screening procedures.

Effective July 1, 2026, Virginia began implementing a broad system for sealing certain criminal records from public view. The framework was first enacted in 2021 and substantially revised in 2025 to address implementation. Although the Clean Slate statutes are found in Title 19.2 of the Virginia Code, rather than the employment-law title, they create direct obligations for Virginia employers. Most importantly, Virginia Code § 19.2-392.15 limits what employers may require applicants to disclose about sealed arrests, charges, and convictions.

What Exactly Does “Clean Slate” Mean?

Virginia’s Clean Slate law does not erase every criminal record. Instead, it creates several methods for “sealing” eligible criminal records. Sealing generally means that the record is no longer available for public access through courts, law-enforcement agencies, the Central Criminal Records Exchange, or the Department of Motor Vehicles, except where Virginia law specifically authorizes disclosure. Some criminal records may be sealed automatically, including certain misdemeanor convictions after the required waiting period, certain marijuana offenses, some charges that end without a conviction, and older traffic infractions. Other misdemeanor convictions, deferred dispositions, and certain lower-level felony convictions may be eligible for sealing through a court petition. Serious offenses and other statutorily excluded offenses remain outside the petition-based process. (law.lis.virginia.gov)

For employers, the key point is simpler: once an arrest, charge, or conviction has been sealed, a job applicant generally may treat it as though it did not occur when answering an employer’s criminal-history questions. Virginia law expressly permits a person whose record has been sealed to deny or not disclose the sealed matter to a private employer, subject to specified exceptions.

What Employers May - and May Not - Ask a Job Applicant

Virginia Code § 19.2-392.15 applies to state and local government employers, educational institutions, and private employers within the statute’s coverage. By its terms, the private-employer provision applies to private-sector Virginia employers that are not subject to federal laws or regulations in the hiring process, and the statute separately identifies several circumstances in which the general prohibition does not apply.

For covered Virginia employers, the rule is straightforward. You may not require an applicant, on an application, during an interview, or otherwise, to disclose an arrest, charge, or conviction that has been sealed. The applicant does not have to identify or provide information about the sealed matter in response to a criminal-history question you may ask as a part of the job application process.

That does not mean Virginia has prohibited private employers from asking about criminal history altogether. The statute is not a general ban on criminal-history questions. A covered employer may still ask otherwise lawful questions about criminal history that has not been sealed, but the employer must structure those questions so applicants are not required to disclose sealed information.

The statute also imposes a notice requirement. If a covered employer includes a question on an application about a prior arrest, charge, or conviction, the application must include—or the employer must otherwise provide—a notice informing the applicant that sealed arrests, charges, or convictions do not have to be disclosed. This matters especially for employers using longstanding forms that ask, for example, whether an applicant has “ever” been convicted of a crime. An applicant may lawfully omit a sealed matter. Employers therefore should not assume that a discrepancy between an applicant’s answer and older information found elsewhere necessarily means the applicant was dishonest.

From Marijuana Records to a Broader Clean Slate System

Virginia employers have seen a narrower version of this sealed record concept before. Former Virginia Code § 19.2-389.3 restricted employer inquiries about certain marijuana-related arrests, charges, and convictions that were not open for public inspection. That statute was repealed effective July 1, 2026, as Virginia’s new broader sealing framework became operational.

The practical change is significant. A restriction that had focused solely on specified marijuana records is now part of a much broader system that can shield a far broader range of eligible criminal records. Employers should not continue using background-check practices designed around the old marijuana-only rule.

What About Third-Party Background Checks?

The Clean Slate law also regulates companies that employers commonly use to conduct background checks. Virginia Code § 19.2-392.16 requires a business screening service that knows a Virginia criminal or traffic history record has been sealed to promptly delete that record. Screening services also must register with the Virginia State Police to receive electronic notifications of sealing orders and use those notifications to remove sealed records from their databases.

That should reduce the likelihood that a compliant report will reference a sealed Virginia record, but employers should not assume every database will update immediately. If a report appears to contain information that may have been sealed, the employer should pause before relying on it and determine whether the information may lawfully be considered. Employers also must continue to comply with the federal Fair Credit Reporting Act and other laws governing consumer reports. Virginia’s statute specifically addresses the relationship between its requirements and the FCRA. Here is a deeper dive into the requirements of the FCRA. Using Criminal Background Checks in Hiring? Here’s What You Need to Know

Important Exceptions for Certain Virginia Employers

The Clean Slate restrictions are not absolute. Section 19.2-392.15 does not apply when an individual seeks employment or volunteer service with the Virginia State Police or a Virginia police department or sheriff’s office. It also recognizes exceptions when the Virginia Code or federal law requires the employer to make the criminal-history inquiry; when a position, or access to the premises where the work will be performed, is subject to a federal national-security requirement; or when Virginia regulations and procedures permit the employer to access sealed records.

Those exceptions can matter to employers in regulated fields such as health care, childcare, education, transportation, and public safety, and to some federal contractors and businesses with employees who need security clearances or access to secure federal facilities. Virginia law separately authorizes access to criminal-history information for numerous regulated employment purposes, and the Clean Slate statute itself permits dissemination of sealed records for specified employment-related purposes. Employers should not assume, however, that operating in a regulated industry automatically creates an exception for every job or every sealed record. The better approach is to identify the specific statute, federal requirement, security program, or Virginia regulation that authorizes or requires access and tailor the hiring process accordingly.

Penalties and What Employers Should Do Now

A Virginia business that willfully violates § 19.2-392.15 is guilty of a Class 1 misdemeanor for each violation. The law therefore deserves more attention than a routine application-form update. (law.lis.virginia.gov)

Virginia employers should review employment applications and electronic recruiting forms now. Criminal-history questions should make clear that applicants need not disclose sealed arrests, charges, or convictions, and the statutory notice should be provided where required. Employers also should train recruiters, human resources personnel, and hiring managers. A compliant written application will not solve the problem if an interviewer later asks an applicant to disclose sealed criminal history.

Employers should also confirm that their background-check vendors have processes for removing sealed Virginia records and resolving disputes over stale information. For positions subject to mandatory criminal-history inquiries, employers should identify and document the legal basis for the exception rather than relying on a general assumption that the business or industry is exempt.

Virginia’s Clean Slate law changes an area of hiring that many employers have treated as routine for years. The principal lesson is straightforward: a criminal record that once was publicly available may no longer be information an employer can require an applicant to disclose. Employers that continue using old applications, interview scripts, or background-check assumptions risk running directly into a statute carrying criminal penalties.

If you have questions about Virginia’s Clean Slate law, criminal background-check practices, or other employment-law requirements affecting your business in Virginia, Maryland, or the District of Columbia, please contact Doug Taylor at (703) 526-5586 or rdougtaylor@beankinney.com, or your current Bean Kinney attorney.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.