In March of this year, Washington became the 11th state to enact legislation requiring public and private sector employers to delay background checks and inquiries regarding job applicants’ conviction records until after determining an applicant is otherwise qualified for the position.

Employers that must comply with the Fair Chance Act include public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral and employment agencies, regardless of the number of workers they employ.  Exempt from the requirements of the Fair Chance Act are employers hiring someone who will or may have unsupervised access to children, vulnerable adults, or vulnerable persons; Washington law enforcement or criminal justice agencies; financial institutions, national or registered securities entities, or other employers who are permitted or required by law to ask about and consider information about an applicant’s criminal record for employment purposes; or employers seeking non-employee volunteers.

Employers covered by the Fair Chance Act may not advertise job openings in a way that precludes individuals with criminal backgrounds from applying.  For example, ads that state “no felons” or “no criminal backgrounds” are prohibited.  In addition, questions requesting information regarding an applicant’s criminal record cannot be included on a job application.  Similarly, employers cannot implement policies or practices that automatically exclude a job applicant with a criminal record, including rejecting an applicant for failing to disclose a criminal record.  Finally, until an employer has otherwise determined an applicant is qualified for a position, the employer cannot (1) inquire verbally or in writing regarding an applicant’s criminal record; (2) obtain a background check for the applicant; or (3) otherwise obtain information related to an applicant’s criminal record.

If you are unsure whether your hiring policies and procedures are compliant with the Washington Fair Chance Act, please contact us for a review of those policies and procedures.

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