Washington Fair Chance Act

Washington’s new “ban the box” law will go into effect on June 7, 2018.  After that date,  an employer may not: “include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record, until after the employer initially determines that the applicant is otherwise qualified for the position.” Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.

Employers are also prohibited from advertising employment openings in a way that excludes people with criminal records from applying, and may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

The new law excludes employers hiring employees with unsupervised access to children, employers (including financial institutions) who are permitted or required by law to consider an applicant’s or employee’s criminal record, various law enforcement agencies, employers seeking nonemployee volunteers, and entities required to comply with the rules or regulations of a self-regulatory organization, as defined by the SEC.

Only the Washington state attorney general’s office may enforce the new law.  Remedies for violations of the law include administrative sanctions or a judgment for  penalties, costs, and attorneys’ fees.   The new law does not replace existing municipal ban the box ordinances (for example, in Seattle).

As a practical matter, Washington employers should revise job applications and modify  hiring procedures so that inquiries about an applicant’s criminal history take place after  an initial determination of whether the applicant is otherwise qualified for the position.  Employers should also make sure that documentation used to obtain applicant consent to background checks clarifies that criminal history will not be obtained until after the employer has determined whether the applicant is otherwise qualified.

The new law and legislative history is here: http://apps2.leg.wa.gov/billsummary?BillNumber=1298&Year=2017&BillNumber=1298&Year=2017


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