If someone working at a Virginia daycare commits a misdemeanor outside of work, does that disqualify them from staying employed there under Virginia's barrier crime law?

Plain-English summary

Virginia's child day centers are barred from hiring people convicted of certain "barrier crimes." There's a narrow exception: a center can hire someone convicted of one simple-assault misdemeanor (Va. Code § 18.2-57) if at least 10 years have passed since the conviction. But the exception drops away if the person "committed [the] offense while employed in a child day center" or if the victim was a minor.

Delegate Scott Garrett asked the Attorney General to resolve an ambiguity in that exception. Did "while employed in a child day center" mean (a) during the period the person worked at a daycare, or (b) only while they were on the job and performing daycare duties?

Attorney General Herring concluded option (a) is correct, by comparing § 63.2-1720(C) with a related statute. The companion statute for children's residential facilities (§ 63.2-1726) uses a different phrase: "in the scope of his employment." That phrase plainly means on-the-job conduct. Because the General Assembly used different language in the two statutes, it must have meant different things. So "while employed" is broader: it covers any conviction during the period of employment, even one for off-duty conduct.

The practical consequence is that a daycare worker who committed an off-duty misdemeanor assault during their employment is permanently disqualified from working at a Virginia child day center, even after 10 years. The 10-year rehabilitation exception is unavailable.

Herring noted a 2008 Joint Commission on Health Care report had reached the opposite conclusion but had not analyzed the textual difference between the two statutes.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Virginia's barrier crime statutes for child care have been amended several times, including significant restructuring around 2018-2020. Verify current law before relying on any specific rule or list of barrier crimes mentioned here.

Common questions

What's a "barrier crime" for child day center hiring?

It's a category of criminal convictions defined in Va. Code § 63.2-1719 that bars a person from employment at a licensed child day center. The list historically included violent felonies, sex offenses, drug crimes, and certain misdemeanors.

When can someone with a misdemeanor still work at a daycare?

Under § 63.2-1720(C), if the person was convicted of not more than one § 18.2-57 misdemeanor (simple assault), and at least 10 years have elapsed, they may be hired. The 10-year exception fails if the offense happened while they were employed at a child day center or if the victim was a minor.

Does this opinion mean any off-duty conviction by a daycare worker permanently bars them?

Under Herring's reading, yes, if the off-duty conviction was a § 18.2-57 misdemeanor committed during the worker's period of employment at a daycare. The 10-year rehabilitation rule won't restore eligibility.

Why does the residential facility rule treat the same situation differently?

Section 63.2-1726 uses "in the scope of his employment," which is narrower. The General Assembly's choice of different words means the residential facility rule covers only on-the-job conduct. Herring's reasoning is that the legislature is presumed to choose its words with care.

Was this a controversial interpretation?

The 2008 Joint Commission on Health Care had concluded the opposite. Herring noted that report did not consider the textual difference between the two statutes.

Background and statutory framework

Virginia regulates child day centers through Title 63.2, Chapter 17 (the Child Care licensing chapter). Section 63.2-1720 imposes background-check and hiring requirements on these centers.

Two parallel statutes apply different exception rules:

• § 63.2-1720(C) (child day centers): exception applies "unless the person committed [the] offense while employed in a child day center"
• § 63.2-1726 (children's residential facilities): exception applies "unless the person committed such offense in the scope of his employment, volunteer, or contractual services"

When two statutes addressing the same general subject use different language, Virginia courts presume the difference was intentional (Williams v. Commonwealth, 61 Va. App. 1, 7). The "scope of employment" phrase has a settled meaning in tort and employment law (on-the-job conduct connected to work duties). The "while employed in" phrase is broader temporal language, referring to the period of employment generally.

Herring applied the cardinal rule that statutes on a specific subject must be construed together (Seaboard Fin. Corp. v. Commonwealth, 185 Va. 280, 286). Reading the two statutes side by side made the General Assembly's deliberate choice unmistakable.

Citations

• Va. Code Ann. § 2.2-505 (AG advisory opinions)
• Va. Code Ann. § 18.2-57 (assault and battery, misdemeanor)
• Va. Code Ann. § 18.2-57.2 (assault and battery against family or household member)
• Va. Code Ann. § 63.2-1719 (barrier crimes definition)
• Va. Code Ann. § 63.2-1720 (child day center hiring restrictions)
• Va. Code Ann. § 63.2-1726 (children's residential facility hiring restrictions)
• Seaboard Fin. Corp. v. Commonwealth, 185 Va. 280 (1946)
• Williams v. Commonwealth, 61 Va. App. 1 (2012)
• Coles v. Commonwealth, 44 Va. App. 549 (2004)
• 2008 Joint Commission on Health Care, Impact of Barrier Crime Laws on Social Service and Health Care Employers, Senate Document No. 11

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2015/15-003_Garrett.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071

July 31, 2015

The Honorable T. Scott Garrett, M.D.
Member, House of Delegates
2255 Langhorne Road, Suite 4
Lynchburg, Virginia 24501

Dear Delegate Garrett:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

By statute, § 63.2-1720(C) of the Code of Virginia, a person who has been convicted of certain offenses "while employed in a child day center" may not be employed there. The precise question presented is whether that phrase refers to (1) an offense committed during the period of time an individual is employed in a child day center, or (2) an offense committed within the scope of employment in a child day center.

Applicable Law and Discussion

Child day centers licensed by the Department of Social Services are required to conduct background checks on their prospective employees. Section 63.2-1720 generally prohibits these facilities from hiring any person who has been convicted of a "barrier crime" as defined in § 63.2-1719. However, § 63.2-1720 provides an exception that allows a child day center to hire a person who has been "convicted of not more than one misdemeanor offense under § 18.2-57 if 10 years have elapsed following the conviction, unless the person committed [the] offense while employed in a child day center or the object of the offense was a minor."

In this context, the phrase "while employed in a child day center" is ambiguous. It could mean an offense committed during the period of employment at a child day center, or it could mean an offense committed within the scope of employment in a child day center. Because the statute is ambiguous, we must examine the language of related statutes to determine the intent of the General Assembly.

Section 63.2-1726 is a related statute. It provides that children's residential facilities, like licensed child day centers, are prohibited from employing persons with certain criminal convictions. It lists the offenses that generally bar an individual from employment at a children's residential facility and provides an exception that allows a children's residential facility to hire "persons who have been convicted of not more than one misdemeanor offense under § 18.2-57 or 18.2-57.2, if 10 years have elapsed following the conviction, unless the person committed such offense in the scope of his employment, volunteer, or contractual services."

Although similar to the exception in § 63.2-1720(C) that applies to employees at child day centers, the exception in § 63.2-1726 for children's residential facilities has a key difference: it refers to "in the scope of his employment" rather than "while employed in." It must be assumed that the General Assembly chose its words with care in enacting the two statutes. Because the two statutes use different words in similar contexts, the General Assembly must have intended the different words to mean different things. The phrase "in the scope of his employment" means the offense must have occurred in connection with the individual's work at a covered facility. It must therefore be concluded that the different phrase "while employed in" means the offense happened during the period of employment, but not necessarily in the scope of employment.

Conclusion

Accordingly, it is my opinion that the phrase "while employed in a child day center" in § 63.2-1720(C) refers to an offense committed during the period of time an individual is employed at a child day center, regardless of whether or not the offense was committed within the scope of employment there.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General