On March 13, Washington Governor Jay Inslee signed bill HB 1298, the Washington Fair Chance Act (“WFCA”), which will make it unlawful for an employer to include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record (arrests or convictions) until after the employer initially determines that the applicant is “otherwise qualified” for the position.

The Act goes into effect on June 7, 2018. Washington is the eleventh state nationwide to enact a “ban-the-box” law that covers both public and private sector employers. All West Coast states and some West Coast cities (including Los Angeles, Portland, and Seattle) have now enacted similar laws.

“Employer” is defined broadly under the WFCA to include “public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.”

The new law will not apply to:

  • 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;
  • Certain law enforcement or criminal justice agencies;
  • Employers seeking non-employee volunteers; or
  • Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the Securities and Exchange Act.

Penalties will start with a notice of violation and offer of agency assistance for the first violation. A second violation can result in monetary penalties up to $750 and up to $1,000 for each subsequent violation.

Troutman Sanders will continue to monitor related legislative developments concerning employment background screening and employee hiring.