Effective today, June 7, 2018, Washington joins a growing list of states and cities implementing “ban the box†legislation restricting employers from inquiring about a job applicant’s criminal background during the initial stages of the application process. Governor Jay Inslee signed into law the Washington Fair Chance Act (WFCA) on March 13, 2018, prohibiting inquiries regarding applicants’ conviction histories until the employer has determined the applicant is “otherwise qualified†for the position. Once the employer has determined that the applicant is otherwise qualified, the employer may make further inquiry.
The new law broadly defines employer to include “public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.â€
Under the Fair Chance Act, Washington employers are restricted from the following:
- Asking or obtaining information about a job applicant’s criminal record, orally or in writing, until after determining that the applicant is otherwise qualified for the position.
- Advertising job openings in a way that excludes people with criminal records from applying. Ads that state “no felons,†“no criminal background,†or similarly worded messages are prohibited.
- Implementing policies or practices that automatically exclude applicants with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Prohibited practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified.
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
- Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined by the Securities Exchange Act.
Washington employers are encouraged to determine whether the new law is relevant, and if so, make sure to review internal processes for considering an applicant’s criminal history, revise job applications, review job postings for prohibited language, educate hiring managers and recruiters, and ensure your employment screening procedures are not initiated until the applicant is determined to be “otherwise qualified†for the position.