What are the requirements relating to advertising open positions?
The Washington Fair Chance Act prohibits employers from advertising open positions in a way that excludes applicants with criminal records from applying.
(a) Criminal records and arrests
The Washington Fair Chance Act provides that employers may not include any question on an employment application, inquire orally or in writing, or receive information through a criminal history background check regarding a potential employee’s criminal record until the employer has determined that the applicant is otherwise qualified for the position. Further, employers cannot implement a policy or practice that automatically excludes individuals with a criminal record.
In addition, the Washington State Human Rights Commission (WSHRC) has promulgated a regulation that provides that employers should not inquire into applicants’ criminal records unless the crimes inquired about reasonably relate to the job duties and occurred within the past 10 years. The Washington Court of Appeals has held that the regulation is invalid, but the WSHRC nevertheless maintains its position that inquiries beyond that scope are inappropriate.
(b) Medical history
There is no state-specific limit on medical history inquiries beyond the general prohibition set out in the Washington Law Against Discrimination, which states an employer cannot refuse to hire an individual because of a disability unless that disability prevents the worker from performing their duties.
(c) Drug screening
There are no state-specific prohibitions on pre-employment drug screening.
(d) Credit checks
Credit checks must comply with both the federal Fair Credit Reporting Act and the Washington Fair Credit Reporting Act. While the Washington act largely mirrors the federal one, it imposes greater limitations on the reasons for obtaining a consumer report. Employers may not obtain a consumer report regarding credit unless the information is substantially job related (in which case the employer must provide its reasons for using the information in writing) or required by law.
(e) Immigration status
There are no state-specific requirements regarding inquiries into immigration status. However, the Washington Law Against Discrimination prohibits employers from refusing to hire an applicant because of their national origin.
(f) Social media
There are no state-specific limitations on checking applicants’ social media accounts as part of a background check.