Washington State has joined a number of other jurisdictions, including the Washington cities of Seattle and Spokane, by passing a “ban-the-box” law, known as the Washington Fair Chance Act (HB 1298). The Act prohibits employers from obtaining any information about an applicant's criminal record (whether by a question on an application for employment, inquiring orally or in writing, receiving information through a criminal history background check, or otherwise) until after the employer initially determines that the applicant is otherwise qualified for the position. It makes it unlawful for employers to advertise employment openings in a way that excludes people with criminal records from applying, or to implement a policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the law does not restrict the employer from inquiring into or obtain information about a criminal record, although it also does not limit any existing restrictions that apply.

The Act emphasizes public education, and bars employees from suing under the Act for damages. The exclusive remedy is enforcement by the Washington Attorney General’s office, which is directed to utilize a stepped enforcement approach by first educating violators, and then warning them, before taking legal action. The maximum penalties are a notice of violation for the first violation, a penalty of up to $750 for the second violation, and a penalty of up to $1,000 for each subsequent violation. The Act does not, however, limit local government laws that provide greater protections to applicants or employees.

The Act excludes certain individuals and employers, including: applicants who will or may have unsupervised access to children or vulnerable adults; employers, including financial institutions, that are expressly permitted or required by law to consider an applicant’s criminal record; law enforcement agencies; and entities subject to regulation by a self-regulatory organization as defined in the Securities and Exchange Act of 1934.

The Act becomes effective on June 7, 2018.