Washington Ban-the-Box Law Limits Criminal Background Inquiries
05/03/18
[EasyDNNnewsLocalizedText:Author]: ADP Admin/Tuesday, May 1, 2018/[EasyDNNnewsLocalizedText:Categories]: [EasyDNNnews:Categories]
Beginning June 7, 2018, Washington will be the next state to implement “ban the box” legislation restricting employers from asking about a job applicant’s criminal background during the initial stages of the application process.
The Washington Fair Chance Act (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 that the applicant 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.
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 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 stop 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.
Coverage: Employers with employees in Washington.
Effective: June 7, 2018
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. The Background Checks Toolkit, available on FormSource in the pre-employment section, will be updated once additional guidance is issued on the new law. Once updated, you can review it for more information.
* Produced in cooperation with Jackson Lewis P.C.
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