State law · For employers
West Virginia background check laws for employers
What West Virginia law says about background checks for employment, beyond the federal Fair Credit Reporting Act (FCRA). Each section shows the rule, who it covers, its exceptions and the law it comes from.
Reviewed
Primary sources
7 laws cited
On this page
At a glance
The West Virginia rules on each topic, in one line. Federal law applies to every topic.
| Topic | West Virginia rule |
|---|---|
| Criminal history questions | No state rule. Federal law applies. |
| Limits on what a report includes | No state rule. Federal law applies. |
| Sealed and expunged records | No automatic clean-slate sealing. Expungement is by petition to the circuit court under § 61-11-26. |
| Credit checks | No state rule. Federal law applies. |
| Salary history | No state rule. Federal law applies. |
| Cannabis | Medical cannabis only. An employer may not discharge, threaten, refuse to hire, or otherwise discriminate against an employee solely because the employee is certified to use medical cannabis. |
| Drug testing procedures | The West Virginia Safer Workplace Act (W. Va. Code § 21-3E-1 et seq.) declares that employers may require drug and alcohol testing of applicants and employees. |
| State consumer reporting law | No state rule. Federal law applies. |
Sealed and expunged records
Who it covers: Employers may not learn of an expunged conviction from the state; the applicant may omit it.
No automatic clean-slate sealing. Expungement is by petition to the circuit court under § 61-11-26. A single misdemeanor may be expunged one year after conviction, incarceration, or supervision ends, whichever is later. Multiple misdemeanors wait two years. A nonviolent felony waits five years. Listed offenses are excluded. § 61-11-26a shortens the wait for people who complete an approved substance-abuse treatment program or a job-readiness course. After expungement the person need not disclose the record on an employment application.
Exceptions
- Applicants for positions in prevention, detection, investigation, prosecution, or incarceration work must still disclose (§ 61-11-26 proviso).
- Excluded offenses (§ 61-11-26(c)) include felony offenses of violence against the person, felonies with a minor victim, sex offenses under article 8B, offenses using a deadly weapon, listed domestic offenses, and DUI.
W. Va. Code § 61-11-26(a)(1)-(2) · W. Va. Code § 61-11-26(b)(1) · W. Va. Code § 61-11-26a(a) · W. Va. Code § 61-11-26(b)(3) · W. Va. Code § 61-11-26(c)
Cannabis use and testing
Who it covers: Employers of certified medical cannabis patients in West Virginia.
Medical cannabis only. An employer may not discharge, threaten, refuse to hire, or otherwise discriminate against an employee solely because the employee is certified to use medical cannabis. The employer need not accommodate use on its premises, may discipline for being under the influence at work when conduct falls below the accepted standard of care, and need not violate federal law. No protection for recreational use and no limit on pre-employment THC testing.
Exceptions
- No duty to accommodate use at the workplace.
- Discipline for being under the influence at work when conduct falls below the standard of care for the position.
- No duty to violate federal law.
Drug and alcohol testing procedures
Who it covers: Employers not already covered by other state testing statutes (for example coal-mine safety testing under chapter 22A and certain chapter 21 programs).
The West Virginia Safer Workplace Act (W. Va. Code § 21-3E-1 et seq.) declares that employers may require drug and alcohol testing of applicants and employees. Testing is lawful on its own; an employer earns protection from legal claims for acting in good faith on a result only if it follows the article’s accuracy and fairness safeguards (written policy, specimen handling, confirmation testing, and related procedures in the article’s later sections). It is a voluntary safe harbor, not a mandate.
Exceptions
- Employers already subject to other statutory drug-testing provisions (§ 21-3E-3).
W. Va. Code § 21-3E-4 · W. Va. Code § 21-3E-3 · W. Va. Code § 21-3E-14 · W. Va. Code § 21-3E-16
Where federal law alone applies
We found no West Virginia rule for private employers on these topics. The FCRA and other federal laws still apply.
- Criminal history questions
- Limits on what a report includes
- Credit checks
- Salary history
- State consumer reporting law
Adverse action notices
Before you reject or act against someone because of a background check report, the FCRA requires a pre-adverse action notice, a wait, and then a final notice. The adverse action letter generator writes both notices and adds the West Virginia requirements where they apply.
The waiting period calculator gives the date under the federal rule.
Paperwork at hire
Besides the federal Form I-9 and W-4, West Virginia sets these for each new hire.
- State withholding. Have each new hire complete Form WV IT-104 so the right amount of West Virginia income tax is withheld. Form WV IT-104
- New hire report. Report each new hire to West Virginia within 14 days; some independent contractors must be reported too. State new hire reporting
- Notices at hire. Written notice of rate of pay and payday.
Build the new hire checklist for West Virginia, with city rules, special cases and a due date for each item.
Sources
- W. Va. Code § 61-11-26(a)(1)-(2)
- W. Va. Code § 61-11-26a(a)
- W. Va. Code § 16A-15-4(b)(1)
- W. Va. Code § 21-3E-4
- W. Va. Code § 21-3E-3
- W. Va. Code § 21-3E-14
- W. Va. Code § 21-3E-16
Last reviewed · General information, not legal advice.
After the hire
Once a background check clears, payroll and onboarding come next. Rippling (paid link) runs payroll, benefits and onboarding from one employee record.