West Virginia Background Check Laws

West Virginia has a limited 'ban-the-box' law that applies only to state agencies. Executive Order 4-16, issued by Governor Earl Ray Tomblin, prohibits state agencies from inquiring about an applicant's criminal history on initial job applications. Agencies can only inquire about criminal history after an applicant has been deemed otherwise qualified for the position and has been interviewed. This order does not apply to private employers or to positions where a criminal background check is required by law.

West Virginia law does not significantly deviate from or add to the federal FCRA regarding general consumer report usage. Employers must still comply with all FCRA requirements, including obtaining written consent, providing pre-adverse action notices, and adverse action notices when using consumer reports for employment purposes. The state's primary distinction lies in its ban-the-box policy for state agencies.

West Virginia generally follows the federal FCRA's seven-year reporting limitation for certain adverse information (e.g., arrests not leading to conviction, paid tax liens, civil judgments, collections accounts) when the position's annual salary is less than $75,000. However, convictions can generally be reported indefinitely. There are no specific state laws in West Virginia that impose stricter reporting limitations than the FCRA for private employers.

West Virginia law allows for the expungement of certain criminal records, including misdemeanor convictions, non-violent felony convictions after a waiting period, and dismissed charges. Once a record is expunged, it is generally treated as if it never occurred, and employers should not consider it in hiring decisions. Employers should be cautious about asking about or considering expunged records, as doing so could lead to legal challenges. West Virginia Code § 61-11-26 outlines the expungement process.