Washington Governor Jay Inslee signed The Washington Fair Chance Act on March 13, 2018 to bar employers from asking about an applicant’s arrests or convictions before the applicant has been determined otherwise qualified for a job.
The Washington Fair Chance Act is projected to take effect on July 1, 2018. However, the measure is contingent on funding being provided by June 30, 2018, in the Omnibus Appropriations Act. Without funding, the legislation will become null and void.
The Washington Fair Chance Act applies to all employers, including public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.
Under the legislation, an employer is prohibited from including any question on any application for employment, inquiring either orally or in writing, receiving information through a criminal history background check, or otherwise obtaining information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the job. However, the employer is permitted to inquire into or obtain information about a criminal record after the employer has initially determined that the applicant is otherwise qualified.
The Washington Fair Chance Act also bars employers from advertising employment openings in a way that excludes people with criminal records from applying, for example, through ads stating “no felons,” “no criminal background,” or otherwise conveying similar messages.
Employers are further barred from implementing any policy or practice that automatically or categorically excludes people with a criminal record from consideration; specifically, employers may not reject an applicant for failure to disclose a criminal record prior to initially determining that the applicant is otherwise qualified for the position.
The prohibitions against criminal record inquiries do 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.
• Any employer, including a financial institution, that 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.
• Employment by a general or limited authority Washington law enforcement agency or by a criminal justice agency.
• An employer seeking a nonemployee volunteer.
• Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of 36 the Securities and Exchange Act of 1934, 15 U.S.C. 78c(a)(26).
The State Attorney General’s Office is charged with enforcing the new law. The legislation mandates a stepped-enforcement approach that moves from first educating violators, to warnings, and then to legal or administrative action. Maximum penalties are a notice of violation and offer of agency assistance for the first violation; up to $750 for the second violation; and up to $1,000 for each subsequent violation.
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This information is provided as a courtesy, may change and is not intended as legal or tax guidance. Employers with questions or concerns outside the scope of a Payroll Service Provider are encouraged to seek the advice of a qualified CPA, Tax Attorney or Advisor.