Washington State Takes Up the Fair Chance Challenge

Image result for washington fair chance actLast month, our blog showcased several Washington State laws going into effect on June 7, 2018, protecting workers’ rights related to equal pay, domestic violence, and sexual harassment.  In this post, we wrap up our coverage of Washington’s 2018 legislative term with the Washington State Fair Chance Act also going into effect in June.

The Fair Chance Rationale

Washington joins a growing number of states to adopt “fair chance” hiring laws.  Generally, fair chance laws, also known as “ban-the-box” laws, prohibit employers from making inquiries into an applicant’s criminal history early in the hiring process.  The term “ban-the-box” refers to removing the question about conviction history commonly found on job applications. These laws typically allow questions about an applicant’s criminal history or a criminal background check after a live interview or a conditional offer of employment has been made. The reasoning behind fair chance legislation is that individuals with criminal records face stiff obstacles to employment.  Delaying the inquiry into an applicant’s criminal background until later in the job application process gives job seekers with criminal records a “fair chance” to be considered for employment opportunities based on their qualifications first.

Currently, there are 31 states and over 150 cities and counties with fair chance laws, mostly in the public sector.  Washington joins ten other states that also apply their fair chance laws to private employment – California, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont.  Seventeen cities also require private employers to comply with fair chance ordinances.

Washington’s Take on Fair Chance

The Washington State Fair Chance Act is expansive covering public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.

The fair chance law prohibits an employer from asking about an applicant’s criminal record (1) on an employment application, (2) by oral or written inquiry, (3) by criminal history background check, or (4) otherwise obtaining information about an applicant’s criminal record until after the employer makes an “initial determination” that the applicant is otherwise qualified for the position.  The law also prohibits any employer policy or practice that automatically excludes or discourages individuals with criminal records from applying for a job (such as stating, “no felons” or “no criminal background” in job ads).

Exceptions to Washington’s Fair Chance Law

Questions about criminal records are not always prohibited in the pre-determination stage of the hiring process.  Fair chance protection does not extend to:

  • Positions permitting unsupervised access to children
  • Certain positions in financial institutions
  • Certain positions in law enforcement
  • An employer seeking non-employee volunteers
  • Entities required to comply with a self-regulatory organization

Implementing the Fair Chance Law

The Washington State Fair Chance Act gives employers ample latitude in assessing the suitability of an applicant once a criminal record is disclosed.  The law stipulates that an employer is not required to provide accommodations or job modifications to facilitate the employment or continuing employment of an applicant or employee with a criminal record or pending charges.  The law also permits employers to adopt policies that are more protective of employees and applicants.  It means that an employer can disqualify an applicant because of a criminal record.  An employer can also adopt a hiring policy that considers mitigating factors such as the age of the conviction or the seriousness of the offense.  Finally, the fair chance law permits local governments to enforce laws that provide additional protections to applicants and employees with criminal records.  Seattle is one such example.

Fair Chance Enforcement

The state’s fair chance law does not create a private right of action.  Instead, the state Attorney General’s Office will take complaints, investigate violations and enforce the law.  The Attorney General Office is also responsible for developing rules implementing the law. The law is effective on June 7, 2018.

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