Washington Laws on Employer Use of Arrest and Conviction Records

Are you looking for a job? If you are one of the estimated one in four Americans of working age with a criminal record, you could be in for a long job search. Surveys show that a majority of employers—a whopping 92%, according to one recent survey—run criminal background checks when hiring for at least some jobs. If a prospective employer finds out that you have an arrest or conviction record, you might find it difficult to compete in today's job market.

Job seekers with criminal records have some legal rights. Federal and state laws place some limits on how employers can use these records in making job decisions. Washington law also provides a number of protections for applicants with criminal records.

Federal Protections for Washington Applicants With a Criminal Record

Employers are limited by two federal laws when seeking or considering an applicant's criminal records in hiring:

• Federal antidiscrimination laws. Title VII prohibits employers from discriminating against applicants and employees based on certain protected characteristics. While criminal history is not a protected category, the Equal Employment Opportunity Commission has recognized that members of certain groups—particularly African American and Latino men—would be disproportionately impacted by a blanket policy of not hiring applicants with a criminal record. The EEOC recommends that employers consider certain factors—including the nature of the job, the nature of the offense, and how long ago it happened—before making an employment decision.
• Criminal background check laws. The Fair Credit Reporting Act (FCRA) applies whenever an employer hires a third party to run a background check on a job applicant. Among other things, the employer must obtain the applicant's written consent and provide written notice if it plans on rejecting the applicant based on the contents of the report. However, if applicants refuse to consent to the background check, the employer can take them out of the running for the job.

To learn more about these federal protections, see our article on getting hired with a criminal record.

Washington Law on Use of Criminal Records

Washington provides several protections for applicants with a criminal record. In Washington, employers are prohibited from asking about certain criminal records and may only ask about criminal history in the later stages of the application process. Washington also has a law similar to the federal FCRA.

Ban-the-Box Law

Washington employers may not ask an applicant about criminal history before determining that the applicant is "otherwise qualified" for the position. An applicant is "otherwise qualified" if he or she meets the basic criteria for the job, as laid out in the job posting or job description, without taking into account criminal history. Employers may not:

• state in a job posting that applicants with a criminal record will not be considered for the position (for example, by stating "no felons" or "no criminal background")
• ask about criminal history on an initial job application
• ask the applicant about criminal history, or obtain a criminal background check, before determining that the applicant is otherwise qualified for the job, or
• have a policy of automatically rejecting any applicant with a criminal history without determining whether the applicant is otherwise qualified for the job.

The law includes some exceptions that allow employers to ask about criminal history earlier, including where:

• the person will have unsupervised access to children or vulnerable adults
• the employer is permitted or required by law to consider an applicant's criminal record
• the position is with a law enforcement or criminal justice agency
• the position is a volunteer position, and
• the employer must comply with the requirements for a self-regulatory organization, as defined by the Securities Exchange Act.

Washington Employment Discrimination Law

The Washington State Law Against Discrimination prohibits employers with eight or more employees from discriminating based on certain characteristics, including race and national origin. The Washington Human Rights Commission, the agency that enforces that law, has recognized that a policy of automatically excluding applicants with a criminal history can constitute race discrimination. To avoid discrimination, the commission advises the following:

• Arrests. An employer that asks about arrests must consider whether the charges are still pending, have been dismissed, or have led to conviction that would adversely affect the applicant's job performance. Employers may consider only arrests that have occurred in the past ten years.
• Convictions. An employer may ask about convictions only if the conviction or the applicant's release from prison occurred within the past ten years and the crime reasonably related to the job duties for the position.

Other Washington Laws

The following rules also apply:

• Vacated records. If a conviction record has been cleared or vacated in Washington, the applicant may answer questions from an employer as though the conviction never occurred.
• Background checks. Washington has a law similar to the FCRA, which requires employers to obtain written consent before ordering a background check from a third party. The employer must also provide certain notices before and after denying employment based on the contents of the report.