Washington's Amended Fair Chance Act Creates New Obligations for Employers

The Basics

Location: State of Washington

Legislation: HB 1747

Type: Fair Chance/ Ban the Box

Effective: July 1, 2026 for employers with 15 or more employees

                 January 1, 2027, for employers with fewer than 15 employees.

Key Takeaways

      Employers may only inquire about criminal records after extending a conditional job offer.

      Employers have additional responsibilities when carrying out a tangible adverse employment action, including but  not limited to ensuring they have a legitimate business reason and providing documentation as to their reasoning.  

Can employers take adverse action based on criminal records?

      Yes.  There are restrictions and additional requirements that employers must follow to do so.  Employers should note that they will be prohibited from taking tangible adverse action based on an arrest record or juvenile conviction.  A ‘tangible adverse employment action’ means a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion. 

What additional obligations do employers have to follow to take adverse action?

         Employers must demonstrate they have a legitimate business reason for making a tangible adverse decision based on the individual’s adult conviction records prior to taking adverse action.  This includes providing the applicant/employee with the criminal record which they are relying on for purposes of evaluating its legitimate business reason and conducting an assessment.

      Factors in the assessment must include, but are not limited to:

•       The severity of the offense and/or conduct
•            The time elapsed since the conviction, and
•       Any evidence of rehabilitation, education, or work history.

         The employer must hold the position open for at least two business days, allowing the applicant to respond, clarify, or dispute the record. 

          Employers must demonstrate how the conviction directly affects the candidate’s ability to perform the job and maintain documentation.

     If the employer proceeds with an adverse decision, they must provide written documentation which includes:

•       The specific conviction considered,
•       The reasoning behind the decision, and
•       Their assessment of each of the relevant factors, including the impact to the position or business operations.

Are there any monetary penalties for violations?

Yes.  The maximum penalties for violations are:

•        $1,500 for a first violation unless waiver was granted;
•        $3,000 for a second violation; and
•        $15,000 for a third and any subsequent violation.

     Are there any exceptions?

     Yes, an employer is exempt with respect to a position entailing work under a federal contract that specifically prohibits people with criminal records from working under the contract. There are additional types of employers and positions that may be exempt, so we recommend you review with counsel to determine if your organization meets the criteria. 

Recommendations

We recommend employers review and discuss your organization’s policies and procedures with your legal counsel to ensure continued compliance with the changing laws and regulations.

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.