Washington State’s New “Fair Chance Act”

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You know that question on almost every job application that asks whether someone has been convicted of a crime? Yeah…about that…If you’re an employer in Washington State, you can’t ask that anymore – at least not until you’ve determined if the applicant is otherwise qualified for the job.

Effective June 7, 2018, Washington State is following the lead of several other states and cities, including Seattle and Spokane, by “banning the box.”

“Banning the what?” you may ask. Simply put, the new rule says employers can’t have a box (or question) on their job application anymore that asks applicants to disclose any of their criminal history.

The rule technically comes from Washington’s new Fair Chance Act, which prohibits employers from obtaining any information about an applicant’s criminal record until after the employer determines if the job applicant is qualified for the position, sans their arrests and convictions.

It doesn’t really matter how, when, or where the question is asked (be it on an application or elsewhere in writing, verbally during an interview, through a background check, or just by accident), employers are restricted from using that info to exclude an applicant from further consideration. At that point, you can’t just dismiss them out-of-hand.

Employers can no longer have a policy or practice that automatically or categorically excludes individuals with criminal records from consideration, or rejects them for failure to disclose criminal records, until an initial determination of their qualifications for the job has been made. Job postings should not be written in a way that excludes or discourages people with criminal records from applying. Don’t use language like “no felons” or “no criminal background” or “those with criminal records need not apply.”

The Act doesn’t restrict the employer from inquiring about a criminal record after they’ve made an initial determination that the applicant is otherwise qualified.

There are some industries or businesses types that may not be subject to this new rule, like financial institutions, public educators, and jobs where applicants could have unsupervised access to children or vulnerable adults. Employers should make sure they know if any similar local, city, or municipal ordinances or rules exist that may be more restrictive than Washington’s Fair Chance Act, as those laws will likely govern in that case.

Sound advice is to review all paper and electronic versions of your employment application forms, job postings, open position advertisements, policies, procedures, job descriptions, or other statements and communications to make sure your business is in compliance.

BOTTOM LINE EMPLOYERS:  Remove the Box & Don’t Ask Just Yet!

 

Got questions? Want more information? Give the Employee Benefits Advisors at EHL Insurance a call at (360) 779-4448.

I’m full of opinions but I never know which ones are good. And I’m not an employment attorney, so I had to include my disclaimer below:

DISCLAIMER: The comments and materials contained herein are intended to be for informational purposes only. This is not legal advice and is not intended to create or constitute a lawyer-client relationship. Before acting on the basis of any of this information or material, you are advised to consult your employment attorney for legal advice. Any views or opinions presented in this email are solely those of the author and do not necessarily represent those of the company or agency. Neither Brown & Brown Insurance nor EHL Insurance accepts any liability for any damages or other liability arising out of this communication or the reliance upon any of the information provided within.

AUTHOR:  John Bower
Employee Benefits Advisor

(360) 779-4448 ext. 8177

John is an Employee Benefits Advisor, a seasoned Human Resources practitioner, and is curious about enough things to be a little bit dangerous! He’s full of opinions, which are a lot like odors, sometimes their good but other times they stink. John has two teenage boys and a sports fanatical family. GO HAWKS!

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