By Amy Robinson, JD, SHRM-SCP, SPHROn March 13, 2018, Governor Inslee signed Washington’s new Fair Chance Act to go into effect on June 7, 2018. The new law, like it’s “ban the box” counterparts in Oregon and California, prevents employers from asking applicants to disclose criminal history when they apply. If you aren’t familiar with the term “Ban the Box,” it refers to the movement that was instituted some years ago by advocates seeking to end the employment practice of requiring applicants to check a box on an application indicating whether the applicant has a criminal history.
Washington law will now make it unlawful for an employer to exclude an applicant from consideration for employment merely because of his/her criminal history, to otherwise request or require a job applicant to disclose his or her criminal history on the employment application or prior to determining whether they meet the basic criteria for the position, or from including advertising job openings with language that would exclude or otherwise dissuade potential candidates with criminal histories from applying. It does not, however, prevent an employer from considering a candidate’s criminal history at all when making a hiring decision. Instead, the employer may ask about a candidate’s criminal history only at or after the initial interview, or if there is not an interview, then after a conditional offer of employment is made.[i]
There are a few limited exceptions typically where state or federal law specifically requires background checks for employment. This would include those who work with children or other vulnerable adults, as defined by Washington law, and to various law enforcement or criminal justice agencies.
So, what do Washington employers need to do now?
- Update employment applications and hiring policies by June 7, 2018 to ensure they aren’t inquiring about an applicant’s criminal history any sooner than the law allows.
- Educating those involved in the hiring process so they are familiar with the requirements of the law and prepared to comply. In particular, make sure your interviewers and others involved in screening applicants don’t, even unintentionally, ask questions about criminal records or exclude someone who has disclosed a criminal history before they have made an initial determination about whether the applicant is otherwise qualified.
- Remember, if you do conduct a criminal background check, or work with an agency that does, you need to be sure to comply with the requirements of the federal Fair Credit Reporting Act, and it’s Washington equivalent, which likely mandates certain notice, appeal, and timelines when doing so.[ii]
Amy Robinson is a shareholder at Jordan Ramis PC, practicing in the Employment Practice Group. Feel free to contact Amy at (360) 567-3900.
This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.
[i] Just a reminder, the federal Equal Employment Opportunity Commission (EEOC) still recommends that employers ensure that there is a legitimate, job-related basis to consider an individual’s criminal history before excluding him or her from certain employment opportunities. Refer to our prior newsletter article regarding the EEOC Guidance on the Use of Arrest and Conviction Records in Employment, available online HERE.