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Ban-the-Box Law Now in Spokane, Washington

03/15/18

Author: ADP Admin/Tuesday, March 13, 2018/Categories: State Compliance Update, Washington

State and local jurisdictions continue to enact legislation that prevents employers from inquiring into an applicant’s criminal background during the initial stages of the application process, known as "Ban-the-Box" or the Fair Chance Hiring Act. One of the latest enactments is in Spokane, Washington.

With certain exceptions, all private-sector employers within the Spokane city limits are covered by the Fair Chance Hiring Act. The ordinance prohibits employers from:
  • Advertising openings in a way that excludes people with arrest or conviction records from applying, such as using advertisements which state “no felons,” “no criminal background,” or which convey similar messages;
  • Including any question in an employment application that inquires about the applicant's criminal background, receiving information through a criminal history background check, or otherwise obtaining—orally or in writing —information about an employee’s arrest or conviction record until after they have participated in an in-person or video interview or have received a conditional offer of employment;
  • Using, distributing, or disseminating an employee’s arrest or conviction record, except as required by law;
  • Disqualifying an employee from employment solely because of a prior arrest or conviction, unless the conviction is related to significant duties of the job or disqualification is otherwise allowed by the Act; or
  • Rejecting or disqualifying an applicant for failure to disclose a criminal record prior to determining that the applicant is otherwise qualified for the position.

The ordinance does not cover employers that (1) hire employees who will have unsupervised access to children under age 18 or to a vulnerable person, (2) are in law enforcement, or (3) are otherwise required or permitted under federal or state law to conduct criminal background checks.

Regarding advertisements, Spokane employers may publicize a requirement for a criminal conviction background check, as long as there is no corresponding statement about automatic preclusion from employment.

Under the ordinance, employers may not inquire about an applicant’s arrests or convictions until after the applicant has participated in an in-person, telephonic, or video interview or has received a conditional offer of employment.

If an employer receives conviction information, it cannot disqualify a candidate prior to an in-person interview or video interview solely because of a prior arrest or conviction, unless the conviction is related to significant duties of the job or otherwise permitted by law. While the ordinance omits “or received a conditional offer of employment,” in this provision, it would be prudent to follow this standard as it is also consistent with the type of analysis employers would undertake when conducting an individualized assessment as contemplated by the guidance from the Equal Employment Opportunity Commission (EEOC).

There is a grace period on the imposition of fines until January 1, 2019. After this date, each violation of the ordinance can result in a $261 fine.

Coverage: Spokane, Washington employers with six or more employees.

Effective: June 14, 2018

Action Required: You should:
  • Review job applications and remove any questions about an applicant’s criminal history. (Note: Our current model employment application does not contain any criminal history questions and can be found on FormSource/Forms Library.)
  • Establish a protocol for obtaining and considering criminal history information, performing individualized assessments of that information, and notifying any applicant who is disqualified because of criminal history. You can review our Background Checks Toolkit available on FormSource in the pre-employment section for more information.

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Tags: 03/15/18

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