A newly passed Washington bill expands protections for applicants and employees under the Washington Fair Chance Act.
Currently, an employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Going forward, an employer may not engage in those actions until after making an offer of employment conditioned on obtaining the applicant’s criminal record.
The following restrictions on employers also apply:
- An employer may not carry out a tangible adverse employment action based on an applicant’s or employee’s arrest record or juvenile conviction record. This does not apply to an adult arrest in which an individual is out on bail or released on their own personal recognizance pending trial.
- An employer may not carry out a tangible adverse employment action solely based on an applicant’s or employee’s adult conviction record, unless the employer has a legitimate business reason for taking such action.
- Before carrying out any tangible adverse employment action, the employer must notify the applicant or employee and identify the record on which the employer is relying for purposes of assessing its legitimate business reason. The employer must hold open the position for a minimum of two business days to provide the applicant or employee a reasonable opportunity to correct or explain the record or provide information on the applicant’s or employee’s rehabilitation, good conduct, work experience, education, and training.
- If an employer makes a tangible adverse employment decision following the reasonable opportunity, the employer must provide the applicant or employee with a written decision, including specific documentation as to its reasoning and assessment of each of the relevant factors, including the impact of the conviction on the position or business operations, and its consideration of the applicant’s or employee’s rehabilitation, good conduct, work experience, education, and training.
“Tangible adverse employment action” means a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee.
“Legitimate business reason” means that, based on information known to the employer at the time the employer makes the decision regarding a tangible adverse employment action, the employer believes in good faith that the nature of the criminal conduct underlying the adult conviction record will:
- Have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held; or
- Harm or cause injury to people, property, business reputation, or business assets, and the employer has considered the following factors, and documented as such in accordance with RCW 49.94.010:
- The seriousness of the conduct underlying the adult conviction record;
- The number and types of convictions;
- The time that has elapsed since the conviction, excluding periods of incarceration;
- Any verifiable information related to the individual’s rehabilitation, good conduct, work experience, education, and training, as provided by the individual;
- The specific duties and responsibilities of the position sought or held; and
- The place and manner in which the position will be performed.
The expanded protections apply employers with 15 or more employees beginning July 1, 2026, and apply to employers with fewer than 15 employees beginning January 1, 2027.
