With Virginia’s new record sealing laws when a criminal conviction is sealed, it is no longer a barrier crime. This opens up previously unavailable employment opportunities for many Virginians. Under Virginia Code Section 19.2-392.5, “Any arrest, charge, or conviction sealed pursuant to § 19.2-392.7, 19.2-392.8, 19.2-392.11, or 19.2-392.12 shall not constitute a barrier crime as defined in § 19.2-392.02, except as otherwise required under federal law.”

What is a Barrier Crime?

In Virginia, a barrier crime is a specific type of criminal offense that can disqualify an individual from being employed in certain fields, particularly those involving abuse or neglect. These crimes are deemed severe enough to limit employment opportunities for individuals with such convictions on their records. However, Virginia’s new record sealing laws provide new hope for those with past convictions.

Virginia Code Sections 32.1-126.01 and 32.1-162.9:1 require that each nursing home, home care organization and hospice obtain a criminal record background check on new hires within 30 days of employment. The law requires that these background checks be obtained using the Central Criminal Records Exchange from the Virginia State Police. The law further requires that no employee be permitted to work in a position that involves direct contact with a patient until an original criminal record clearance or original criminal history record has been received, unless such person works under the direct supervision of another employee for whom a background check has been completed. Direct supervision means that the supervising employee is physically present, within an immediate distance. Certain felony and misdemeanor convictions are a bar to employment in a nursing home, home care organization and hospice.

Convictions That Can Bar Someone from Employment

Traditionally, barrier crimes include offenses related to abuse or neglect. Examples of these crimes are:

• Violation of protective orders
• Felonies committed by prisoners
• Drug charges

Additional Barrier Crimes Added in 2017

On July 1, 2017, Virginia expanded the list of barrier crimes to include a variety of offenses, such as:

• Assault by a mob
• Gang crimes
• Various types of terrorism
• Threatening the Governor
• Firearm-related crimes
• Crimes involving minors
• Sex crimes
• Rioting
• Displaying multiple symbols
• Paramilitary activity
• Escaping from jail or prison
• Treason

Impact of Barrier Crimes on Employment

The designation of certain crimes as barrier offenses means that individuals with such convictions can be automatically disqualified from employment in specific fields, especially those involving vulnerable populations or positions of trust. For example, someone with a barrier crime conviction may find it challenging to secure employment in healthcare, education, or childcare.

However, it’s important to note that not all convictions result in an absolute barrier to employment. Employers in Virginia have some discretion and may hire individuals with barrier crime convictions if:

• The conviction is not related to abuse or neglect.
• At least five years have passed since the conviction.

An Answer to Barrier Crimes – The Record Sealing Process:

Virginia Code § 19.2-392.12 provides for certain convictions to be sealed by petition. A petition is a legal document that asks a court to order some action.  Petition-based sealing generally describes the process whereby an individual petitions a court to have their criminal record sealed and the court determines whether to grant or deny the sealing petition.

Almost every misdemeanor except DUI’s and domestic assault may be sealed by petition. Grand larceny (and felonies deemed punishable as grand larceny) and Class 5 and 6 felonies may also be sealed by petition.

This creates a total of over 100 criminal offenses that can be sealed by petition. Contact a qualified attorney with experience in this area of law to discuss whether your particular conviction qualifies for sealing and if you are eligible.

Virginia Code § 19.2-392.12 establishes certain requirements for a conviction to be sealed.

The petitioner cannot ever have been convicted of Class 1 or 2 felony or a felony carrying a possible life sentence.  The petitioner also cannot have been convicted of a Class 3 or 4 felony within the last 20 years or any felony within the last ten years of the petition.

Further, the petitioner must have no new convictions in the past seven years for a misdemeanor and ten years for a felony (from the date of conviction or release from incarceration, whichever is later).  If the conviction record shows drug dependence, the petitioner must prove rehabilitation. And lastly, the petitioner must prove the continued existence of the conviction constitutes manifest injustice. There is a lifetime limit of two charges sealed.

Another Consideration- Deferred Disposition and Expungement for Pending Charges:

Prior to being convicted of a barrier crime, try to negotiate that the charge is dismissed and expunged.

In 2021, Virginia enacted an expungement law that allows pending criminal charges to be taken under advisement and expunged after they are dismissed. Virginia Code Section19.2-298.02 allows certain criminal charges to be expunged, by agreement of the Commonwealth Attorney, after the charge is dismissed.

Virginia Code Section 19.2-298.02 is designed for criminal defendants with little or no prior criminal record. The statute allows charges to be taken under advisement and then upon the completion of the court’s requirements, the charge can be dismissed. The last section provides that when the Commonwealth Attorney agrees, the charge can be expunged after it is dismissed.

Section (D) of Virginia Code Section19.2-298.02 reads as follows:

Upon agreement of all parties, a charge that is dismissed pursuant to this section may be considered as otherwise dismissed for purposes of expungement of police and court records in accordance with § 19.2-392.2, and such agreement of all parties and expungement eligibility shall be indicated in the final disposition order.

Conclusion

Barrier crimes in Virginia are serious offenses that can limit employment opportunities in specific fields. However, with the introduction of Virginia’s new record sealing laws, individuals with past convictions have a pathway to mitigate the impact of their criminal records. By having a conviction sealed, they can improve their chances of securing employment and moving forward with their lives. It’s a significant step toward rehabilitation and reintegration into society, offering a second chance to those who have paid their debt to society.