In 2018, Washington enacted a Fair Chance Act, requiring covered employers to wait until after considering an applicant to be “otherwise qualified” for the position at issue to inquire about or consider criminal history when making hiring or other employment decisions. There are exceptions for, among others, financial institutions and certain regulated employers.
Starting on July 1, 2026, however, unless an exception applies, Washington employers with 15 or more employees must change their screening practices as follows:
- Wait until after making a conditional offer of employment to inquire about or consider criminal history.
- Do not reject an applicant or discharge or take other action against an employee because of an arrest record, including a “pending charge for criminal conduct,” or juvenile conviction record. Employers may, however, consider adult arrest records if the person is out on bail or released on their own personal recognizance pending trial.
- Do not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from any position.
- Do not reject an applicant or discharge or take other action against an employee because of the person’s conviction record unless the employer can show that it has a “legitimate business reason” for doing so. “Legitimate business reason” means the employer believes in good faith that the nature of the criminal conduct will: (a) have a negative impact on the individual’s fitness or ability to perform the position sought or held; or (b) harm or cause injury to people, property, business reputation, or business assets.
- Document the assessment and consider the following factors: (a) the seriousness of the conduct underlying the adult conviction record; (b) the number and types of convictions; (c) the time that has elapsed since the conviction, excluding periods of incarceration; (d) any verifiable information related to the individual’s rehabilitation, good conduct, work experience, education, and training, as provided by the individual; (e) the specific duties and responsibilities of the position sought or held; and (f) the place and manner in which the position will be performed.
- Send certain notices to the individual both before and at the time of the adverse employment action (like the Fair Credit Reporting Act’s pre-adverse and adverse action notices).
- Include in the first notice the potentially disqualifying criminal record and hold the position open for at least two business days (although an employer folding these requirements into the FCRA pre-adverse action notice must wait at least five business days before implementing the adverse action).
- Provide the individual with a reasonable opportunity to correct or explain the record or provide information about their rehabilitation, good conduct, work experience, education, and training.
- Include in the final notice specifics about the decision, including documentation as to the employer’s reasoning, its assessment of the factors described above, “including the impact of the conviction on the position or business operations,” and its assessment of any information the individual provided in response to the first notice.
Employers with less than 15 employees must comply starting January 1, 2027.
The amendment adds a requirement not seen in other fair chance laws—if an employer advises job applicants that the position will be subject to a post-offer criminal history background check, the employer must immediately make a written disclosure to the applicant that summarizes certain aspects of the law and includes a copy of the Attorney General’s Fair Chance Act guide, which can be found here. An employer must provide these same disclosures if an applicant voluntarily discloses information about their criminal history during a job interview.
Failure to comply can result in civil penalties and aggrieved individuals may be entitled to compensatory damages.
All employers should consider a privileged review of their background screening practices by experienced counsel. Beyond Washington, several states and localities have their own so-called fair chance laws with “job relatedness” requirements for an employer’s use of criminal history information, including California, Illinois, New York, and Wisconsin, among others. And several have enhanced notice requirements that go beyond the FCRA’s requirements.
Seyfarth Shaw LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from their professional advisers.
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