Washington Becomes 11th State to "Ban the Box" for Private Employers

Author: David B. Weisenfeld, XpertHR Legal Editor

March 14, 2018

Washington has become the 11th state with a "ban the box" law affecting private employers after Governor Jay Inslee signed the Fair Chance Act. Effective June 6, 2018, Washington employers may not ask about arrests or convictions - or receive information through a criminal background check - before a job applicant is deemed otherwise qualified for a position.

The new law also bans employers from advertising job openings in a way that excludes people with criminal records from applying. For instance, ads that state "no felons," "no criminal background" or convey similar messages are prohibited.

In addition to private businesses and corporations, the measure will also cover contractors, training and apprenticeship programs, plus temporary staffing and employment agencies.

The Washington law does not apply if:

  • An employer is hiring a person who will or may have unsupervised access to children under 18 or a vulnerable adult;
  • An employer, including a financial institution, is required under federal or state law to inquire into an applicant's criminal record for employment purposes;
  • A job is sought with certain law enforcement or criminal justice agencies; or
  • An employer is seeking a nonemployee volunteer.

Every West Coast state now has a "ban the box" law affecting private employers, and a number of big cities in the region, including the following, have enacted broad criminal history limitations during the hiring process:

  • Los Angeles;
  • Portland;
  • San Francisco;
  • Seattle; and
  • Spokane.

The Washington "ban the box" law does not preempt local laws, such as the Seattle ordinance, that provide additional protections to job applicants or employees with criminal records. It also does not prohibit local governments from enacting broader protections for applicants with criminal records.

However, the new law does not impose an obligation on an employer to provide accommodations or job modifications to facilitate the employment or continued employment of a job applicant or employee with a criminal record.