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Washington Ban-the-Box Law Limits Criminal Background Inquiries

04/19/18

Author: ADP Admin/Wednesday, April 18, 2018/Categories: State Compliance Update, Washington

Governor Jay Inslee signed the Washington Fair Chance Act (WFCA) into law on March 13, 2018. The WFCA prohibits inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified” for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may make further inquiry.

Prohibitions:
With few exceptions, all public and private sector employers in the State of Washington will be prohibited from:
  • Advertising openings in a way that excludes people with arrest or conviction records from applying, such as using advertisements that state “no felons,” “no criminal background,” or that otherwise convey similar messages;
  • Including any question in an employment application, inquiring orally or in writing, receiving information through a criminal history background check, or otherwise obtaining information about an applicant’s arrest or conviction record until after the employer has initially determined that the applicant is otherwise qualified for the position;
  • Having automatic disqualifiers or categorically disqualifying an individual based on a criminal record before initially determining the person is otherwise qualified for the position; or
  • Rejecting or disqualifying an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
Exceptions:
The law will not apply to:
  • Any employer hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person, as defined by Washington law;
  • Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes;
  • Various law enforcement agencies or criminal justice agencies in Washington;
  • Any employer seeking a nonemployee volunteer; or
  • Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined by the Securities Exchange Act.
The WFCA is not intended to interfere with or diminish any collective bargaining agreements in unionized workplaces.

Enforcement and Penalties:
The WFCA does not provide a private cause of action. Instead, the Washington State Attorney General’s Office has the authority to investigate possible violations of the law and assess fines, including penalties, costs, and attorneys’ fees. The maximum penalties are as follows: a notice of violation for the first violation, a fine of $750 for the second violation, and a fine of $1,000 for each subsequent violation.

Local Ordinances:
The statewide WFCA does not preempt Washington municipalities from enforcing their own ban-the-box ordinances. Currently, Seattle’s Fair Chance Employment Ordinance and Spokane’s Fair Chance Hiring Act are the only two ordinances in Washington.

Action Required:
You should:
  • Review job applications to remove questions about an applicant’s criminal history (Note: Our current model employment application does not contain any criminal history questions and can be found on FormSource/Forms Library).
  • Establish a protocol for obtaining and considering criminal history information, performing individualized assessments of that information and notifying any applicant disqualified because of criminal history. Once additional guidance is released, our Background Checks Toolkit will be updated. You can find the Toolkit on FormSource in the pre-employment section.
As always, please contact your Human Resource Business Partner with any questions you may have.

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Tags: 04/19/18

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