| March 28, 2018 |

Washington Enacts Fair Chance Act

Washington is the first state to ban the box in 2018. On March 13, 2018, Governor Jay Inslee signed the Washington Fair Chance Act (the Act) which prohibits employers from asking about arrests or convictions before an applicant is determined “otherwise qualified” for a position. The Washington Fair Chance Act takes effect on June 7, 2018.

Definition of Otherwise Qualified
The Act defines “Otherwise Qualified” to mean that the applicant meets the basic criteria for the position as set in the advertisement or job description without consideration of a criminal record.

Washington Fair Chance Act Restrictions
Under Section 2 of the Act, an employer may not:

• Include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history check, or obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position;
• Advertise employment opening in a way that excludes people with criminal records from applying (i.e. “no felons” or “no criminal background”); and
• Implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is qualified for the position.

Prohibited policies include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is qualified for the position. Please note that once the employer initially finds the applicant to be otherwise qualified, the employer may inquire into or obtain information about a criminal record.

The Act may not be interpreted as requiring an employer 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.” In addition, the Act will have no impact on existing local laws (Seattle Ban-the-Box Ordinance and Spokane, Washington Bans-the-Box and More ) that provide “additional protections to applicants or employees with criminal records,” and will not prohibit local governments from enacting such laws in the future.

Exceptions
The Act does not apply to the following circumstances:

1. Any employer hiring a person who will or may have unsupervised access to children under the age of eighteen, a vulnerable adult as defined in chapter 74.34, or a vulnerable person as defined in RCW 9.96A.060;
2. Any employer including a financial institution, who is expressly permitted or required under a federal or state law to inquire into, consider, or rely on information about an applicant’s or employee’s criminal record for employment purposes;
3. Employment by a general or limited authority Washington law enforcement agency as defined in RCW 10.93.020 or by a criminal justice agency as defined in RCW 10.97.030(5)(b); 
4. An employer seeking a nonemployee volunteer; or
5. Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the securities and exchange act of 1934, 15 U.S.C. 78c(a)(26).

Enforcement & Penalties
The Act does not provide a private right of action to seek damages or remedies of any kind against the covered employer. Also, the Act does not create any additional liability for employers. The state attorney general’s office, who enforces the Act, has the authority to:

• Investigate violations in response to complaints and seek remedial relief for the complainant;
• Educate the public on how to comply with the Act;
• Issue written investigative demands for pertinent documents;
• Adopt rules implementing the law; and
• Pursue administrative sanctions or a lawsuit in the courts for penalties, costs, and attorneys’ fees.

The attorney general will initially educate an employer found in violation of the state and warn them. If the violations continue, then the attorney general will take action, including administrative action. The penalties include a notice of violation and offer of agency assistance for a first violation, monetary penalties up to $750 for a second violation, and up to $1,000 for each subsequent violation.

What This Means to You

• The Washington Fair Chance Act, which takes effect on June 6, 2018, applies to all employers in the state of Washington.
• Washington employers may not request criminal background information before an applicant is determined qualified for the position.
• Employers may not advertise employment openings in a way that excludes people with criminal records from applying, such as advertisements which states “no felons” or “no criminal background.”
• Employers who violate the Act will initially receive education by the state attorney general along with a warning for their first violation. Employers will be liable for a civil penalty up to $750 for a second violation, and up to $1,000 for each subsequent violation.

The Act is accessible here to review: https://legiscan.com/WA/text/HB1298/id/1750395/Washington-2017-HB1298-Enrolled.pdf