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Monday, May 20, 2019

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Washington state enacts new ban-the-box law

Washington state enacts new ban-the-box law

On March 13, Washington state Governor Jay Inslee signed into law the Fair Chance Act, which prohibits employers from inquiring about a job candidate's criminal history before that individual has been deemed qualified for a desired position.

Beginning June 6, HB 1298 will extend the state's "ban-the-box" jobseeker protections to cover public and private employers. Washington becomes the 11th state to require that the public and private sector delay queries on arrests or convictions until an applicant's job qualifications are presented. Washington joins West Coast states Oregon and California - along with the cities of Los Angeles, Portland and Seattle - in enacting a ban-the-box law.

The new legislation makes it unlawful for an employer to include any criminal record question on an employment application, either orally or in writing, until after a determination that the candidate is "otherwise qualified" for the position. Applicants meeting basic criteria for a job prior to consideration of criminal history are considered "otherwise qualified," after which an employer may then obtain information about a person's criminal record.

The legislation defines "employer" to include “public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.” However, the law will not apply to certain law enforcement agencies, employers seeking non-employee volunteers, or any entity required to comply with regulations of a self-regulatory organization as defined in section 3(a)(26) of the Securities and Exchange Act. Nor will the Washington Fair Chance Act effect:

* "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;"

* "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."

As for enforcement, the state attorney general has the power to investigate violations and seek relief for effected individuals. A "stepped reinforcement approach" is designed to educate employers found in violation of the statute, but further infringements may result in monetary penalties of up to $1,000.  

Proponents of fair-chance reforms say the law allows people with records to transition more easily into the job market. Washington state employers should be proactive in considering whether they need to revise job applications, interview guidelines, or policies and procedures for their criminal background checks.

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