Validity Screening Solutions provides this material for educational and informational purposes only, and shall not be construed as legal advice, express or implied. For questions regarding your organization’s practices and compliance with applicable laws, please consult with your legal counsel.
Washington’s Fair Chance Act, initially passed in 2018, prohibits employers from inquiring about or considering a job applicant’s criminal history until after they considered the applicant to be “otherwise qualified” for the position.
Starting July 1, 2026, Washington employers with 15 or more employees can expect to make significant changes to their hiring practices as an amendment to the Fair Chance Act is scheduled to take effect. Employers with fewer than 15 employees have until January 1, 2027, to ensure compliance. Some of the key changes that covered employers are required to adhere to include:
- Wait until a conditional job offer has been made prior to inquiring about or considering an applicant’s criminal history.
- Cannot have any policy or procedures that automatically exclude individuals with criminal records from job positions.
- Cannot reject applicants or take action against employees based on arrest records, including pending charges or juvenile convictions. However, adult arrest record can be considered, if the individual is out on bail or released on their own personal recognizance pending trial.
- Cannot reject, discharge, or take other action based on a conviction record unless you can show you had a “legitimate business reason” for doing so.
- Conduct and document an assessment considering factors such as the severity of the offense, how much time has elapsed since the offense, and the offense’s relation to the duties and responsibilities of the position.
- Similar to the Fair Credit Reporting Act’s Pre-Adverse Action and Adverse Action process, the employer must send notices to the applicant both prior to and at the time of taking an adverse employment action.
- The disqualifying criminal offense must be included in the initial notice and hold the position open for at least two business days. (A minimum five-business day waiting period should still be followed to comply with FCRA guidelines.)
- After providing the initial notice, the individual must be provided with a reasonable opportunity to either correct/explain the record or provide information regarding their rehabilitation, good conduct, or work/education experience.
- In the final Adverse Action notice, documentation regarding the reasoning for the decision, the above factors considered in the assessment, “including the impact of the conviction on the position or business operations,” and an assessment of any information the applicant provided in response to the Pre-Adverse notice.
Additionally, the amendment introduces a requirement not typically found in other fair chance laws. If an employer informs job applicants that the position will be subject to a post-offer criminal history background check, the employer must immediately provide a written disclosure to the applicant. This disclosure should summarize relevant aspects of the law and include a copy of the Attorney General’s Fair Chance Act guide, available here. Employers are also required to provide these disclosures if an applicant voluntarily shares information about their criminal history during a job interview.
Prior to the effective date, it is recommended that Washington employers review their job applications, interview questions, and background screening practices with qualified legal counsel. Failure to update policies and properly document hiring decisions could expose employers to legal risks.
For more information about the new amendment, please click here.
