New "Ban the Box" Laws in Washington Take Effect June 2018

Washington is the latest state to pass a so-called “Ban the Box” law that limits employers’ ability to use criminal background checks to screen applicants and employees. While similar restrictions have existed in the City of Seattle since 2013 (see prior advisories here and here), the new state law extends restrictions to all employers with employees in Washington state. In addition, Spokane has passed its own "Ban the Box" ordinance that places different, and in some ways greater, restrictions on employers with employees performing work within the City of Spokane. The Washington statewide law goes into effect June 7, 2018. The Spokane Ordinance goes into effect June 14, 2018. Employers should review their hiring, promotion, and termination policies and procedures to ensure they comply with each of these laws, as applicable.

THE WASHINGTON FAIR CHANCE ACT

What Does the Act Do?

Beginning on June 7, 2018, employers in Washington State:

• May not ask or obtain information about an applicant’s criminal record (defined broadly as “any record about a criminal or juvenile case filed with any court”) until after the employer determines the applicant meets the minimum qualifications for the position. For example, an employer’s initial application must not require criminal background information;
• May not advertise employment openings in a way that excludes people with criminal records from applying; and
• May not implement any policy or practice that automatically or categorically excludes applicants with a criminal record from consideration for employment before determining that the applicant meets the minimum qualifications for the position.

In addition, the Act does not preempt local background check ordinances from providing greater protections to applicants and employees. Thus, the Seattle ordinance’s provisions requiring employers to (1) articulate a “legitimate business reason” for refusing to hire a candidate due to his or her criminal history, and (2) give applicants notice of a contemplated adverse employment action and an opportunity to respond still apply to employers with employees in Seattle. Likewise, the Spokane ordinance’s restriction on seeking criminal information before interviewing an applicant or extending a conditional job offer, discussed in more detail below, applies to employers with employees in Spokane. However, the Act preempts any local ordinance that attempts to limit the Act’s protections.

To Whom Does it Apply?

All employers (regardless of where the employer is based) with employees who perform work in Washington, with the following exceptions:

• Positions that will or may have unsupervised access to children, a vulnerable adult, or a vulnerable person, as defined by state law;
• Employers who are expressly permitted or required under any federal or state law to inquire about or consider an applicant’s or employee’s criminal record;
• Positions with Washington law enforcement or criminal justice agencies;
• Non-employee volunteers; and
• Any entity required to comply with self-regulatory organization rules or regulations under the Securities and Exchange Act of 1934.

What are the Penalties?

The Act is enforced by the Washington Attorney General. Individuals do not have a private right of action under the Act. The Attorney General’s enforcement powers include:

• Investigating potential violations of the Act (either in response to a complaint or upon the Attorney General Office’s own initiative);
• Issuing discovery demands (including document requests, written interrogatories, and oral testimony); and
• Pursuing administrative sanctions up to $1000 per violation or initiating lawsuits for penalties, costs, and attorneys’ fees

What Happens Next?

The Act becomes effective June 7, 2018. The Attorney General’s Office will adopt additional rules implementing the Act. Employers should review their policies and procedures, and make sure employees involved in the hiring or promotion process are trained to comply with the Act. Because monetary penalties may be assessed for each violation of the Act, practices that have the potential to affect a large number of individuals (for example, seeking criminal history information in initial applications) have the potential to trigger multiple violations and penalties.

THE SPOKANE FAIR CHANCE HIRING ORDINANCE

What Does the Ordinance Do?

Beginning June 14, 2018, employers with employees within the Spokane city limits:

• May not ask or obtain information about an applicant’s criminal record (defined broadly as “any record or information about a citation or arrest for criminal conduct”) until after an interview (in-person, telephonic, or video), or in connection with a conditional offer of employment (this requirement is more restrictive than the Washington or Seattle laws, which permit an employer to inquire about criminal history once the employer determines an applicant satisfies the minimum job qualifications);
• May not advertise employment openings in a way that excludes people with criminal records from applying (e.g. “criminals need not apply”);
• May not disqualify an applicant prior to an interview solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job;
• May not reject or disqualify an applicant for failing to disclose a criminal record prior to initially determining whether the applicant is otherwise qualified for the position; and
• May not use, distribute, or disseminate an applicant’s or employee’s arrest or conviction record except as required or allowed by law.

To Whom Does the Ordinance Apply?

All employers (regardless of where the employer is based) with employees who perform work within the Spokane city limits, with the following exceptions:

• Positions that will or may have unsupervised access to children, a vulnerable adult, or a vulnerable person, as defined by state law;
• Employers who are expressly permitted or required under any federal or state law to inquire about or consider an applicant’s or employee’s criminal record;
• Positions with Washington law enforcement; and
• The City and County of Spokane governments (which are covered by other ordinances), the State of Washington, the United States, and all federally recognized Indian tribes.

What Are the Penalties?

Individuals do not have a private right of action under this ordinance. Instead, the ordinance is enforced by the City of Spokane. An employer’s first violation of the ordinance is a Class 1 civil infraction and a $261 fine. The ordinance permits the amount of the fine to double with each subsequent infraction. Although the ordinance goes into effect June 14, 2018, enforcement actions in 2018 will focus primarily on education. Fines will not be imposed until January 1, 2019.

What Happens Next?

As with the Washington Fair Chance Act, employers with employees within Spokane city limits should review their policies and procedures, and make sure those with decision-making authority are trained to comply with the Ordinance.