Criminal background checks remain a routine part of the hiring process for many employers. However, state legislatures are increasingly creating restrictions on employers’ ability to obtain and use criminal history information when making hiring decisions. While these laws have often been referred to as “ban-the-box” or “fair chance” laws, many now extend well beyond removing criminal history questions from job applications. Today, employers are required to delay criminal history inquiries, conduct individualized assessments, provide applicants with an opportunity to respond, and to disregard certain records altogether.

Recent developments in Washington and Virginia illustrate how these laws continue to evolve.

Washington Expands Fair Chance Hiring Requirements

Washington currently restricts employers from inquiring into an applicant’s conviction history until after determining whether the applicant is otherwise qualified for the position. As of July 1, 2026, the state’s Fair Chance Act imposes substantial additional restrictions on employers with 15 or more employees. Under the amended law, covered employers generally may not inquire into an applicant’s criminal history until after extending a conditional offer of employment. The law will later apply to all employers, regardless of size, beginning January 1, 2027.

Covered employers also may not reject an applicant for failing to disclose their criminal history before a conditional offer has been made. In addition, the amendments prohibit automatic or categorical disqualification based on criminal history and require employers to follow specified procedures before taking adverse action. Employers must notify applicants of the records being considered, provide at least two business days for the applicant to respond, and conduct an individualized assessment before making a final decision.

In short, Washington’s amendments focus primarily on when employers can ask about criminal history and how that information may be used in the decision-making process.

Virginia Limits Access to Certain Criminal Records

Virginia’s approach is different. Rather than focusing on when employers may inquire into criminal history, Virginia limits certain employers’ access to sealed criminal records.

As of July 1, 2026, Virginia generally prohibits state and local government employers, educational institutions, and private employers that are not subject to federal hiring laws or regulations  from requiring applicants to disclose arrests, charges, or convictions that have been sealed. Applicants are likewise not required to disclose such information.

The statute does not define which private employers are considered exempt as “subject to federal laws or regulations in the hiring process.” However, it expressly exempts employers when federal law requires the inquiry.

The law contains several exceptions, including:

• Certain law enforcement positions; 
• Positions where state or federal law requires a criminal history inquiry; and 
• Positions subject to national security requirements.

Although the law does not apply to every employer, it may affect many employers that are not operating under federal screening requirements. For those employers, hiring materials and application forms may need to be updated to ensure they do not request information applicants are legally entitled to withhold.

A Broader Trend Employers Should Be Watching

Washington and Virginia are the latest examples of a nationwide trend. Fair chance hiring laws now exist in numerous states and local jurisdictions across the country, including jurisdictions that have enacted local ordinances that impose additional requirements on employers. As a result, employers operating in multiple jurisdictions increasingly face differing criminal history screening requirements.

As these laws continue to expand, employers should review their hiring practices to ensure compliance with applicable state and local requirements. Particular attention should be paid to:

• Employment applications
• The timing of background checks
• Any automatic disqualification criteria
• Procedures used when criminal history information may affect a hiring decision

Employers should not assume that a hiring process compliant in one jurisdiction will satisfy requirements in another. Increasingly, fair chance hiring laws are regulating not only when employers can ask about criminal history, but also what information may be considered in the first place. Employers, particularly those with centralized recruiting or hiring processes, should regularly review their hiring practices to ensure compliance with evolving state and local requirements.

For questions regarding fair chance hiring laws, please reach out to Jotionette L. Jones or any other member of Ice Miller’s Workplace Solutions team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.