Washington State and Spokane – Ban the Box

Posted by: Accurate Background

June 6, 2018

Washington State and the City of Spokane have joined a growing number of jurisdictions that have passed so‐called "ban‐the‐box" laws. Both laws limit when employers can inquire into and consider the criminal history of a job applicant and will go into effect in June 2018.

Washington State Bans the Box

The Basics

  • Location: Washington State
  • Legislation: HB1298
  • Type: Ban the Box
  • Effective: June 6th, 2018

Key Takeaways

  • May not exclude people with criminal records in advertisements.
  • Prohibits inquiries into an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified (as defined).
  • Penalties may be enforced up to $1,000 per violation.

Who does this effect?

The law applies to employers including public agencies, private individuals, businesses and corporations, contractors, training and apprenticeship programs, and temporary staffing, job placement, referral, and employment agencies.

What is prohibited in the law?

Employers may not:
  • Advertise employment openings in a way that excludes people with criminal records from applying;
  • Obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position, meaning the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record; or
  • Implement any policy or practice that excludes individuals with a criminal record, including failure to disclose such record, from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

Are there any exceptions?

The law does not apply to:
  • Employers hiring a person who will or may have unsupervised access to children, or a vulnerable adult or person (as defined);
  • 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;
  • Employment by a general or limited authority Washington law enforcement agency, or a criminal justice agency (as defined); ü An employer seeking a nonemployee volunteer; or
  • Any entity required to comply with the rules or regulations of a self‐regulatory organization (as defined).

What are the repercussions for a violation of the law?

The Washington Attorney General’s office will utilize a stepped enforcement approach using education, warnings, and legal, including administrative, action. Penalties may be enforced up to $1,000 per violation.

How does the state law interact with local government laws?

The state law does not interfere with local government laws that provide additional protections for such applicants or employees in the future. Local government laws that provide lesser protections to job applicants with criminal records than the state law conflict and may not be enforced. The state law also does not discourage or prohibit employers from adopting employment policies that are more protective of employees and job applicants than the state's requirements.

The City of Spokane, WA Bans the Box

The Basics

  • Location: Spokane, WA
  • Legislation: Ordinance No. C35564
  • Type: Ban the Box
  • Effective: June 14th, 2018

Key Takeaways

    • Cannot advertise job openings in a way that excludes people with arrest or conviction records.
    • Prohibits any inquiries about an applicant’s arrest or conviction until after an interview or conditional offer of employment has been made.
    • Cannot disqualify an applicant solely because of a prior arrest/conviction record or for failure to disclose a criminal record prior to determining the applicant is qualified for the position.

Who does this effect?

The law applies to all private employers within the Spokane city limits. Separate requirements are also outlined under the law which apply only to the City of Spokane.

What is prohibited in the law?

Employers may not:
      • Advertise job openings in a way that excludes people with arrest or conviction records from applying; however, employers may advertise the requirement for a criminal history inquiry and/or background check during or after the interview process as long as it does not state that an arrest or conviction record will automatically preclude the applicant from consideration for employment;
      • Obtain information about an applicant's arrest or conviction record until after the applicant has participated in an interview or received a conditional offer of employment;
      • Use, distribute, or disseminate an individual’s arrest or conviction record except as required by law;
      • Disqualify an individual solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job or disqualification is otherwise allowed by this law; or
      • Reject or disqualify an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position, meaning the applicant meets certain criteria for the position as set out in the job advertisement or description without considering the existence or absence of a conviction or arrest record.

Are there any exceptions?

The ordinance does not apply to:
      • Any employer hiring an employee who will have unsupervised access to children under the age of eighteen, a vulnerable adult, or a vulnerable person (as defined under state law);
      • Employers that are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant’s arrest or conviction record for employment purposes;
      • Any General Authority Washington law enforcement agency (as defined under state law); or
      • Employers conducting criminal background checks that are specifically permitted or required under state or federal law.

What does this mean for an employer?

      • The ordinance is not intended to prohibit an employer from inquiring into or obtaining information about an applicant’s criminal conviction or arrest record or background, and from considering the information regarding such information, after the conclusion of a job interview, or after a conditional offer of employment has been made, and from using such information in any pre‐hire decision.
      • Nothing in the ordinance prohibits an employer from declining to hire an applicant with a criminal record or from terminating the employment of an employee with a criminal record.

What are the repercussions for a violation of the law?

A violation of the ordinance is a class 1 civil infraction. Any subsequent violation advances the infraction by one class and may increase the fines. Citations or fines for violations of the ordinance will not be imposed until after January 1, 2019.

Recommendations

recommend you review and discuss with your legal counsel your organization’s policies and procedures to ensure compliance with the changing laws and regulations.  Seyfarth Shaw has also provided overviews you may read for Washington State.

Contact Accurate Background

For more information regarding recent legislative changes in other states and jurisdictions, visit our Legislative Updates page. Please note:  The information provided above is strictly for educational purposes.  It is not intended to be legal advice, either expressed or implied.  Accurate Background recommends that you consult with your legal counsel regarding all employment regulations.