The state of Washington has both statewide and local laws that govern the use of background reports that basically parallel the FCRA. For instance, employers are prohibited from requesting background reports without disclosing that they are seeking a report from a CRA, specifying the type of information they are seeking, and obtaining the applicant’s written authorization.
In addition, they must advise the applicant of their right to obtain a copy of their report. If adverse action is taken on the basis of the information in the report, the applicant must be provided with the CRA’s information, a description of their rights, and be provided with an opportunity to dispute any information in the report that they feel is erroneous.
Furthermore, CRAs cannot report on any criminal records of arrests, indictments, or convictions with final disposition dates that are older than seven years from the date of the report for any positions which are expected to have a salary of $20,000 or less. If the salary is over $20,000, the seven-year limitation doesn’t apply.
Washington also has a statewide Ban the Box/Fair Chance law. In addition, two Washington cities, Seattle and Spokane, have enacted legislation that pertains to criminal records checks.
According to the statewide law, employers with one or more employees are prohibited from checking into an applicant’s criminal history until it has been determined that the applicant meets the basic qualifications for the job they are seeking. Nor may employers require applicants to disclose prior criminal history on their job applications, or advertise the jobs in a manner that would prohibit those with a criminal history from applying.
In addition to the statewide Fair Chance Act, another state law requires that inquiries into criminal convictions can only be considered a matter of business necessity if the convictions are related to the duties of the position and if the convictions or release from prison occurred within the past ten years.
Employers are prohibited from requesting credit-related information on background checks of potential applicants unless such creditworthiness information substantially relates to the job, or is required by law, and the employer discloses to the applicant, in writing, their reasons for requesting this type of information.
Those with a criminal history may petition the courts to have records of certain types of convictions vacated. If such a record is vacated, the individual with such a record may respond to employers who ask about their criminal history in the negative, as if they were never convicted of the crime.
Social media accounts of job applicants are also protected from access by a potential employer. Employers are prohibited from requesting, requiring, or attempting to coerce current employees or job applicants to divulge the login information for their personal social media accounts. They cannot coerce employees or potential job applicants to access their social media accounts in the employer’s presence, nor can the employer insist that they be added as a contact on an employee’s or potential job applicant’s social media account.
Most importantly, employers are prohibited from taking adverse action against any employee or job applicant who refuses to comply with such illegal requests for access to their personal social media accounts. There are several situations where employers may access an individual’s social media accounts, namely if it is related to a specific investigation and involves certain factors relative to ensuring compliance with applicable laws. The law also doesn’t apply to accounts and devices that the employer issues.
In conjunction with the statewide law banning the box from job applications, Washington also became one of only a few states that also banned the box from public college applications, delaying conviction questions until later in the college application process.
Although Pierce County doesn’t have a formalized ban the box policy, it has removed the question about prior criminal history from its County job applications. It also applies the EEOC criteria when evaluating criminal records. Background checks are conducted only after a conditional job offer is made, with the exception of law enforcement jobs.
In cases where criminal history results in the intent to take an adverse action, Pierce County provides applicants with a pre-action notification and advises the applicant on how to obtain a copy of the report containing the disqualifying information. The applicant is provided with the opportunity to correct inaccuracies in their report prior to a final decision being made on their job application.
Seattle employers are prohibited from running criminal background checks until after an initial screening has eliminated unqualified job applicants by ensuring that all applicants possess the minimum qualifications that are necessary to successfully perform the job. Employers may only take adverse action based on a job applicant’s arrest record if there is a legitimate business reason tying the arrest to the duties of the job.
If adverse action is contemplated, the employer must identify to the applicant the specific disqualifying information and give the applicant an opportunity to respond, by holding the position open for two business days. Employers must ensure that there is no policy or practice that categorically excludes anyone with an arrest or conviction from employment.
In November 2013, Seattle passed an ordinance the applied to both City and private employers that specified that background checks were only required for certain positions. If employment was denied based on a background check report, the applicant has the right to appeal, and the applicant will be provided with a copy of their background check report, with disqualifying information clearly identified.
The applicant has a minimum of two days to provide corrected information or an explanation of the circumstances on the report. Under the ordinance, background checks are delayed until after a pool of qualified applicants has been identified. Furthermore, criminal history can only exclude the individual applicant from a position if there are legitimate business reasons for such exclusion.
In November 2017, Spokane’s City Council passed a Fair Chance ordinance. Mayor David Condon declined to take action on the ordinance, neither signing nor vetoing it. The ordinance was enacted in December 2017, in spite of the mayor’s inaction.
The ordinance applies to both private and public employers. Employers are prohibited from inquiring into a job applicant’s criminal history on the job application. The background check itself is delayed until after an interview or conditional offer of employment.
When advertising for job openings, care must be taken to avoid any language that states or implies that people with criminal records are prohibited from applying. The employer must determine that the job applicant meets all the basic qualifications for the position prior to requesting a background check. Exemptions from the ordinance are made for those employers that are required by law to perform background checks and for positions having unsupervised access to vulnerable populations, such as children, the elderly, and other vulnerable persons.
Furthermore, city employers must apply the EEOC criteria in performing an individual assessment of a job applicant’s criminal history. This includes a determination of whether or not the applicant’s history is directly related to the duties of the position, or whether their history poses any type of risk to other employees, customers, or city residents. Certain positions with the police and fire departments are exempt from the ordinance, and conditional offers of employment for these positions are contingent upon the applicant successfully passing a criminal background check.
In October 2017, the Spokane County Board of County Commissioners voted to change the county hiring policy to prohibit questions regarding past convictions from being included on the county’s job applications. In addition, this new hiring policy delayed background checks until it was determined that the applicant was otherwise at least minimally qualified for the position. Background checks are limited to convictions in the past ten years.
Employers must apply the EEOC criteria in evaluating background checks. If adverse action is contemplated, the employer must provide the applicant with a copy of their background check report and give the applicant ten business days to challenge the record’s accuracy, provide evidence of satisfactory rehabilitation, or describe mitigating circumstances. After these ten days, the adverse action is finalized if the appeal is not successful.
In June 2015, Tacoma’s City Council unanimously voted to ban the box on City job applications. While the City will continue running background checks on all applicants for City employment, these checks will be delayed until after a conditional offer of employment. The background check will be evaluated using the EEOC criteria. Background checks remain mandatory for police officers and any position where the applicant would be working directly with children.
Cities Include: Seattle, Spokane, Tacoma, Vancouver, Bellevue, Everett, Kent, Yakima, Renton, Spokane Valley and more.
Note: This information is not intended to be legal advice. Please consult with your own legal counsel for advice related to your state/locality.