Under the Washington Fair Chance Act (WFCA), an employer is prohibited from obtaining any information about an applicant's criminal record until the employer determines that the applicant is otherwise qualified for the position. Further, the employer may not implement any policy or practice that automatically or categorically excludes an applicant with a criminal record from consideration from a position prior to an initial determination that the applicant is otherwise qualified. This includes rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified.
Certain types of employers are exempt from the WFCA, including:
The Attorney General's Office (AGO) enforces the WFCA. The AGO is authorized to pursue administrative sanctions and must use a stepped enforcement approach as follows:
Criminal Record Inquiries.
An employer may not automatically or categorially exclude an individual with a criminal record from any employment position. The employer must make a conditional offer of employment prior to obtaining information about an applicant's criminal record or rejecting an employee for failure to disclose a criminal record.
Tangible Adverse Employment Actions.
An employer's ability to carry out a tangible adverse employment action based on an applicant's or employee's criminal history is limited. "Tangible adverse employment action" is defined as 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. The scope of the limitation varies depending on whether the criminal history is an adult conviction or whether the criminal history is an arrest record or a juvenile conviction.
An employer is entirely prohibited from carrying out a tangible adverse employment action based on an applicant's or employee's arrest record or juvenile conviction record.
An employer may carry out a tangible adverse employment action based on an applicant's or employee's adult conviction record only if the employer has a legitimate business reason for doing so. The employer has a legitimate business reason if the employer believes in good faith that the nature of the criminal conduct in the conviction record will:
Prior to carrying out a tangible adverse employment action based on an adult conviction record, the employer must notify the applicant or employee and identify the record on which the employer is relying to assess the legitimate business reason. The employer must hold the position open for at least two business days to give the applicant or employee a reasonable opportunity to correct or explain the record or to provide information of rehabilitation, good conduct, work experience, education, and training. If the employer makes the tangible adverse employment decision, the employer must provide the applicant or employee with a written decision that must include specific documentation of its reasoning and an assessment of relevant factors, including the impact of the conviction on the position or business operations and the employer's consideration of the applicant's or employee's rehabilitation, good conduct, work experience, education, and training.
An employer is prohibited from carrying out any tangible adverse employment action against any employee because the employee (or a person acting on behalf of the employee) makes a good-faith report to the employer, the Attorney General's Office (AGO), a labor organization, or others of a violation of the requirements relating to tangible adverse employment action or otherwise informs others of the requirements.
Penalties.
For purposes of administrative sanctions, the AGO may waive penalties for first time or de minimis violations of the Washington Fair Chance Act (WFCA) and instead provide education and a warning to deter future noncompliance. The AGO must impose administrative sanctions and pursue appropriate legal action for second and subsequent violations. The specific requirement for the AGO to use a stepped enforcement approach is eliminated.
The AGO is authorized to impose a monetary penalty for a first violation of the WFCA of $1,500 unless the penalty is waived. The maximum penalty amount for a second violation is increased from $750 to $3,000. The maximum penalty amount for a third and subsequent violation is increased from $1,000 to $15,000.
The monetary penalties must be imposed per aggrieved job applicant, employee, or party for each violation. The penalty accrues for the benefit of, and is payable to, the job applicant, employee, or other aggrieved party. If there is no identifiable job applicant, employee or aggrieved person, the penalty is retained by the AGO. The AGO may also pursue legal action to obtain unpaid wages, unpaid administrative penalties, damages, and reasonable attorneys' fees and costs.
Exemptions.
An employer is exempt from the WFCA with respect to a position entailing work under a federal contract that specifically prohibits people with criminal records from working under the contract.
(In support) This is a matter of justice and second chances. This bill will remove barriers, expand the talent pool, aid in retention, and increase diversity. Many people who have served their time are returning to their communities. Employment is an important part of reintegrating people back into the community. Criminal records create a cycle of poverty and recidivism and should not be a life sentence of unemployment and insecurity. Employers are looking for qualified workers, and this bill gives employers the chance to learn about a potential employee's skills and qualifications before doing anything else. This bill does not prohibit background checks, but only delays them. This is already a standard practice for many employers. Justice-impacted people are dedicated and reliable. Workers are still facing barriers and employers lack clarity on when to run a background check. This bill does not require employers to hire anyone. This will help people shift from surviving to thriving by helping people start careers, instead of just jobs. Employees will be able to collaborate with employers to build skills to enter career pathways. When people get careers, recidivism drops. People with criminal records are more than their past mistakes. They are our parents, neighbors, and coworkers. Being rejected from jobs leads to depression, anxiety, and hopelessness. This bill will help Washington keep pace with other states. The enforcement aspect of this bill is critical. It allows education and warnings in lieu of penalties, which will be especially helpful to small businesses. The escalating penalty structure was suggested by business groups. The bill does not create a private right of action and does not punish businesses for taking actions based on legitimate business reasons.
(Opposed) Providing more people access to the job market is a good goal. However, this bill takes a punitive approach, but a collaborative approach is what is needed. A work group should be created to coordinate between stakeholders. A form should be developed to aid in self-disclosure during the interview phase. Many positions have access to cash, inventory, etc., and interact regularly with customers. Some employers send employees into people's homes. Employers want to be able to screen potential employees without fear of retaliation. This bill allows actions to be taken for business reasons, but requires employers to explain themselves in writing. This bill requires employers to get right up to the hiring stage before they can check an applicant's background. Small businesses will be affected by this bill. Small business owners will have their names, their families, and their lives on the line. Employers want to know who their employees are before they hire them.
(In support) Representative Lillian Ortiz-Self, prime sponsor; Hilary Young, Pioneer Human Services and the Statewide Reentry Council; Beth Avery, National Employment Law Project; Christoph Mair, Washington State Labor Council, AFL-CIO; James Campbell, The Rainier Club; Prachi Dave, Civil Survival; Ryan Davis, Executive Director, Seattle Jobs Initiative; Christopher Beasley, Ph.D.; Sophia Thomas; Greg Lotakis; and Kelly Olson, Civil Survival.