The trend is now complete on the West Coast with Washington joining both California and Oregon with implementing a statewide “ban the box” statute on behalf of the Fair Chance Act. On March 13, 2018, Governor Jay Inslee signed into law the Fair Chance Act for the state of Washington. The new HB 1298 law will prohibit covered employers from asking job applicants about their previous criminal convictions and/or arrests before they deem them “otherwise qualified.”
Employers covered under the new law includes “public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.”
The new law will not apply to:
- Certain law enforcement or criminal justice agencies
- Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes
- Any entity required to comply with the rules and regulations of a self-regulatory organization, as defined in section 3(a) (26) of the Securities and Exchange Act
- Employers seeking non-employee volunteers
- Any employer hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person as defined elsewhere in state law
The HB 1298 statute will make it unlawful for an employer to:
- Ask on an employment application about previous criminal convictions and/or arrests
- Request about previous criminal convictions and/or arrests made either written or orally
- Conduct and receive information on an employment background check about previous criminal convictions and/or arrests
- Acquire information about an applicant’s criminal arrest and/or conviction record until after the employer deems the applicant “otherwise qualified” for the job
“Otherwise qualified” means that the applicant has met the essential criteria documented in the job posting or description without any concern regarding a criminal record. The employer must determine that the applicant has met the minimum qualifications. At that point, they may ask about previous criminal activity and conduct the employment screening. If the employer’s background screening or hiring policy states that applicants with a criminal record will be excluded from employment before being coded as “Otherwise Qualified,” they are guilty of unlawful hiring practices.
Employers should not feel that they are obligated to hire a felon based on this new HB 1298 law. Employers are also not required “to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a criminal record or who is facing pending criminal charges.”
The law will be enforced in a “stepped enforcement approach.” This means any claims brought against employers for violating the law will require education first on complaining with the law. If the misconduct continues, then the employer will be warned. The next step would be monetary penalties up to $750.00 for a second violation and up to $1,000.00 for each subsequent violation.
What should employers do now?
Employers in the state of Washington need to determine if they are covered under the new HB 1298 law and update their employment applicant to remove any questions that may be related to previous criminal convictions and/or arrests.
Additionally, employers that operate nationwide should update policies and applications to comply with the new law.