Effective: June 7, 2018
Employers in the State of Washington may be restricted from asking about a job applicant’s arrest or criminal background history during the initial stages of the job application process. On March 13, 2018, Washington Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA), otherwise known as “ban the box” legislation.
The WFCA prevents most employers from asking about an applicant’s criminal status until the employer determined the applicant is “otherwise qualified” for the position. After the employer makes this initial decision, that the applicant is “otherwise qualified,” then the employer may ask questions about the applicant’s criminal background history.
The WFCA outlines relevant definitions for covered employers as follows:
“Criminal record” includes any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.
“Employer” includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.
“Otherwise qualified” means that the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.
The WFCA Requirements –
The General Rules
Under the new WFCA laws, almost all covered employers in the State of Washington will be prohibited from:
An employer cannot advertise openings in a way that excludes people with arrest or conviction records from applying for a job opening with their companies. For example, employers cannot use any job publications or advertisements that contain the words “no felons,” “no criminal background,” or other words or phrases that otherwise convey similar messages;
Prescreening of Job Applications:
ntil after the employer has initially determined the applicant is otherwise qualified for the position, an employer cannot:
[Job Application] include any question about arrest or criminal history in an employment application; or,
[Interviews] ask, either orally or in writing, about the job applicant’s arrest or criminal history; or,
[Criminal Background Checks] receive information through a criminal history background check; or,
[Other] otherwise obtain information about an applicant’s arrest or conviction record.
[Disqualifiers] Have any automatic disqualifiers or categorically disqualify a job applicant based on a criminal record; or,
[Reject an Applicant for Failure to Disclose] Reject or disqualify a job applicant for failure to disclose an arrest or criminal record.
Exceptions to The General Rule
The Ban-the-Box WFCA laws do not apply to:
An employer who wants to hire a person who will or may have unsupervised access to children under the age of 18 years or a vulnerable person, as defined by Washington law;
An 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 criminal record for employment purposes;
Various law enforcement agencies or criminal justice agencies;
An employer who seeks a non-employee volunteer; or
An entity required to comply with the rules or regulations of a self-regulatory organization as defined by the Securities Exchange Act.
Note: The WFCA is not intended to interfere with or diminish any collective bargaining agreements in unionized workplaces.
What If You Violate the WFCA?
First, the WFCA does not provide a private cause of action for job applicants against a potential employer who feels the potential employer may have violated the WFCA. The WFCA provides that the State of Washington Attorney General’s Office (AGO) is granted authority to investigate possible violations of the WFCA. The AGO has the power to assess fines, penalties, costs, and attorneys’ fees. The maximum penalties may include:
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.
The WFCA and Local Governments
The WFCA applies to the State of Washington. However, the WFCA does not preempt local governments or municipalities located within the State of Washington from enforcing their own ban-the-box ordinances.
For example, there are currently two cities – Seattle and Spokane – that already have similar ordinances on the books. Seattle passed the Fair Chance Employment Ordinance with similar laws to the WFCA. Spokane passed a similar law to the WFCA, the Fair Chance Hiring Act.
How Does the WFCA Apply to You?
What should you do before the WFCA becomes effective as of June 7, 2018? First, please note, this is a new law (outside of the cities of Seattle and Spokane). As such, the courts in the State of Washington have not had the opportunity to interpret the law, or provide guidance on how it will be enforced or applied to employers.
At a minimum, most employers can no longer ask about a job applicant’s arrest or criminal history until he/she has determined that the applicant is otherwise qualified for the position. The WFCA does not expressly outline the steps an employer must follow after the employer has made this determination on the job applicant’s status.
As a covered employer, you should, at a minimum, take the following steps now:
Fulfill your obligations under the Fair Credit Reporting Act if they plan to obtain criminal history reports from third-party vendors.
Follow best practices throughout the hiring process.
Engage in an individualized assessment of any disclosed arrests or criminal history prior to making any employment decisions.
Review and revise, as needed:
Your hiring practices,
Job application postings and advertisements,
Job application forms, checklists, policies, and procedures,
Interview questions and forms,
Finally, all covered employers should provide periodic training updates to its human resource and other employees involved in the job posting, screening, and interview process.
Kellen Norwood is an attorney with JDSA Law.
[Content provided in this article should be used for informational purposes only and is not intended to be a substitute for professional advice. Always seek the advice of a relevant professional with any questions about any legal decision you are seeking to make.]