- Employers may inquire about criminal history after an initial screening of applications or resumes to eliminate unqualified applicants.
- Employers are limited in their ability to consider convictions and arrests as the ordinance requires a job-related assessment.
- The law requires certain notices to rejected job applicants and sets out restrictions on the contents of job advertisements.
Who does this effect?
Applies to employers with one or more employees. However, covered employees are individuals who perform services when the physical location of those services is within the city of Seattle at least 50% of the time.
What does the law provide?
- Criminal history information can be sought after an initial screening of applications or resumes to eliminate unqualified applicants.
- Employers may inquire about the conduct related to an arrest record, but may not carry out a tangible adverse employment action “solely based on” such a record.
- Employers must also have a legitimate business reason for taking any tangible adverse employment action “solely based on” the conduct relating to an arrest.
- Employers may not take adverse action “solely based on” a conviction record or pending criminal charge unless the employer has a legitimate business reason.
A “legitimate business reason” exists where, based on information known to the employer at the time the employment decision is made, the employer believes in good faith that the nature of the criminal conduct underlying the conviction or the pending criminal charge either:
- Will have a negative impact on the individual’s fitness or ability to perform the position, or
- Will harm or cause injury to people, property, business reputation, or business assets.
The employer also must consider the following specific factors:
- the seriousness of the underlying conviction or pending criminal charge;
- the number and types of convictions or pending criminal charges;
- the time that has elapsed since the conviction or pending criminal charge, excluding periods of incarceration;
- any verifiable information related to the individual’s rehabilitation or good conduct, provided by the individual;
- the specific duties and responsibilities of the position sought or held; and
- the place and manner in which the position will be performed.
Are there any notice requirements?
- Where the adverse decision is based on criminal history information, regardless of the source, a pre-adverse action notice must inform the individual of the record or information on which the employer is relying as the basis for the intention to rescind the offer, and provide a copy of the report.
- Employers must hold open a position for a minimum of two business days after providing the notice to afford the individual a reasonable opportunity to correct or explain that information. After two business days employers may hold open a position until a pending charge is resolved or adjudicated or questions about an applicant’s conviction history or conduct relating to an arrest are resolved.
- Employers may not advertise, publicize or implement any policy or practice that automatically excludes all individuals with any arrest or conviction records from employment for a job that will be performed at least 50% of the time within city limits.
Are there any exceptions
The Ordinance is not to be interpreted or applied to diminish or conflict with any requirements of state or federal law. An employer may perform a criminal background check on a job applicant or employee, or require criminal history information from a job applicant or employee, to the extent that the employer is required to do so by state or federal law or regulations. Employers should consult with their to see if they are otherwise exempt from the law.