Washington Governor signs statewide “ban the box” law

Washington’s new “ban the box” law, which takes effect June 7, 2018, prohibits private employers from asking about criminal history before deciding whether an applicant meets the basic criteria for the position. It also prohibits job ads that automatically exclude people with criminal histories from applying (e.g., by saying “no felons” or “no criminal background”).

What This Means for Washington Employers

The new law applies to all private employers, with a few exceptions for:

• jobs that involve unsupervised access to children or vulnerable adults;
• jobs for which the employer is specifically permitted or required to consider criminal records for employment purposes;
• law enforcement jobs;
• volunteer positions; and
• certain positions regulated by the Securities and Exchange Commission.

The law will be enforced exclusively by the state attorney general, meaning workers cannot sue employers directly for violations of the law, and penalties will start with a notice of violation and offer of agency assistance, and then monetary penalties up to $750 for a second violation and up to $1,000 for each subsequent violation (Second Substitute House Bill 1298).

City-Specific Ordinances and the New Law
Unfortunately, the new law doesn’t preempt local laws. The ordinances in Seattle and Spokane are substantially similar to the new Washington state law, but grant a few additional rights to employees. For example, in Seattle, applicants must have an opportunity to explain or correct criminal history information, and in Spokane, employers cannot ask about or consider criminal history until after an applicant has participated in an interview or received a conditional offer of employment.

How to Ensure Compliance
Check Your Job Applications and Job Ads

No later than June 7, 2018, eliminate any questions on your job application about criminal history, and any references in your job advertisements that would prohibit individuals with criminal histories from applying. It’s okay, however, to explain that part of your hiring process includes a criminal background check.

Determine When You Will Ask About Criminal History

You should also identify the stage in your hiring process when you will ask about criminal history, and ensure no one accidentally asks too early. Nothing in the Washington law indicates you need to first conduct an interview or make an offer of employment, as is the case in Spokane, but from a practical standpoint, that may be the best solution.

Audit Your Background Check Methods

If you use a third party to conduct a criminal background check, you must comply with the federal Fair Credit Reporting Act (FCRA). See our Legal Guide, “Background Checks: Simple Third-Party Reports” (1184) and Model Form, “Background Checks: Federal Notices” (5341).

If you have questions about this new law, please contact your Vigilant employment attorney. We’re here to help you stay informed of the ever-changing employment law landscape. Not a member? Sign up for our newsletter today for timely employment law articles, and inquire about our unlimited, flat-fee employment law advice services.