Summary of the Washington Fair Chance Act (RCW Chapter 49.94) for Employers

Employers who hire in Washington State should review their procedures to ensure compliance

The Washington Fair Chance Act, established under RCW Chapter 49.94, is a “ban-the-box” law designed to give individuals with criminal records a fair opportunity to apply for jobs without facing early discrimination. The law prohibits employers from inquiring about criminal records in the initial stages of the hiring process, aiming to promote equal employment opportunities. This summary highlights how employers in Washington can maintain compliance while benefiting from a broader and more diverse applicant pool.

Who is Covered?

The Washington Fair Chance Act applies to both public and private employers in Washington State with at least one employee. This includes companies, organizations, agencies, and even temporary staffing agencies. Certain exceptions exist for employers in industries where state or federal laws require criminal background checks or limit hiring based on criminal history. These typically include law enforcement agencies, positions involving unsupervised access to children, vulnerable adults, or individuals with developmental disabilities.

Impact on Employment Applications and Job Postings

Under the Fair Chance Act, employers are prohibited from asking about criminal convictions in job postings, application forms, and initial interviews. The primary aim is to ensure that candidates are not immediately disqualified due to their criminal history before they have a chance to demonstrate their qualifications.

Key restrictions include:

  • No criminal history questions on job applications: Employers cannot include checkboxes or inquiries about criminal history on job applications.
  • No criminal background questions during the early hiring process: This restriction extends to interviews and any other interaction before an employer has determined that an applicant is otherwise qualified for the position. An employer can only ask about criminal history after an initial determination of qualifications has been made.
  • Job postings: Employers must avoid advertising job openings in ways that could deter individuals with criminal records from applying, such as including statements like “background check required” without specifying the stage at which it will be conducted.

Exceptions and When Criminal History May Be Considered

Once an employer has determined that an applicant meets the basic qualifications for the job, they may conduct a criminal background check and inquire about criminal history. However, employers are encouraged to consider the relevance of the criminal record to the job, including the nature of the offense, how long ago it occurred, and whether the individual has demonstrated rehabilitation.

Employers subject to federal, state, or local regulations that mandate background checks or limit hiring based on criminal history are exempt from certain provisions of the Act. Additionally, employers hiring for positions with access to sensitive information or vulnerable populations may be permitted to conduct background checks earlier in the process.

Key Takeaways for Employers

To ensure compliance with the Washington Fair Chance Act, employers should focus on the following strategies:

  1. Remove criminal history inquiries from job applications: Employers must eliminate any questions about criminal convictions from the initial application form and job postings. Doing so ensures they are in line with the Act and helps create a more inclusive hiring process.
  2. Wait until a conditional offer is made or an applicant is deemed qualified before conducting background checks: Employers should establish clear guidelines within their hiring process to identify when an applicant is considered “qualified” before requesting any criminal background information.
  3. Tailor background check policies: Once criminal background information can legally be considered, employers should focus on whether the conviction is relevant to the job duties. For example, an offense that occurred several years ago may be less relevant than a recent conviction related to the position’s responsibilities.
  4. Document decision-making processes: Employers should maintain detailed records on why a particular criminal record led to a hiring decision. This helps protect against claims of unfair discrimination and demonstrates that an individualized assessment was made.
  5. Stay updated on exceptions: Employers in industries with specific background check requirements should regularly review state and federal guidelines to ensure they comply with those additional obligations while also adhering to the Fair Chance Act.

Conclusion

For employers, the Washington Fair Chance Act provides an opportunity to tap into a wider and potentially underutilized talent pool by reducing barriers for individuals with criminal records. By adhering to the law’s requirements, businesses can build more inclusive hiring practices, avoid potential penalties, and contribute to a fairer labor market. Maintaining compliance requires revisiting job application processes, updating hiring procedures, and training staff to ensure that criminal history inquiries are handled correctly and fairly.

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The foregoing content is not given as legal advice but is instead offered for informational purposes only. Fair Screen is not a law firm and therefore cannot offer legal advice. We always recommend speaking with an attorney who is knowledgeable about your company’s individual circumstances prior to making any hiring decisions or policy changes. Fair Screen makes no assurances regarding the accuracy or completeness of this content.