Sleepless in Seattle: New Background Screening Ordinance May Keep Employers Up at Night

Starting on July 20, 2013, companies with any employees who work at least half-time in the City of Seattle may no longer include a criminal history question on their employment applications. Additionally, employers can no longer maintain a blanket policy to exclude from employment all individuals with arrest or conviction records.

Employers will still be permitted to run a criminal background check on a job applicant or require the applicant to provide criminal history information, but only after reviewing applications or resumes to eliminate unqualified applicants. Employers may still inquire about arrest records as well. But in order to deny employment (or take any other adverse action) for conduct relating to an arrest or for a criminal conviction, the employer must be able to prove a legitimate business reason for doing so, which is defined in the ordinance.

Most Seattle employers will need to modify employment applications, adjust their pre-hire screening processes, and possibly change job descriptions and announcements to satisfy requirements under the ordinance. Adding a documentation procedure for anyone denied employment based on a criminal history is also advisable.

Consider These Recommendations

Companies affected by the new ordinance should modify employment application forms to align with the ordinance, such as removing criminal history questions unless there is a state or federal law that conflicts with the ordinance.

Employers whose employees have unsupervised access to children under the age of 16, developmentally disabled persons, or vulnerable adults should still include the criminal history questions required by RCW 43.43.834 in their employment applications and can still obtain criminal background checks from the Washington State Patrol under RCW 43.43.832.

Employers who order background checks from a pre employment screening agency should make sure their vendors understand the new legal requirements.

Before obtaining criminal history information, employers will need to determine which applicants are qualified for the position. This can be done by documenting the minimum qualifications before the hiring process begins, using a job description that lists all knowledge, skills and abilities required to perform the job.

Employers who want deny employment based on criminal history or arrests should first review their job descriptions and job duties to determine if a legitimate business reason exists for doing so. The factors that constitute a “legitimate business reason” are set forth in SMC 14.17.010.

Some of these factors require obtaining criminal history information from the applicant. Since obtaining this information is prohibited until after a determination has been made that the applicant is qualified for the position, a step should be added to the hiring process for obtaining this information from qualified applicants.

The employer must give the applicant two business days to respond and correct or explain the criminal history information.

The ordinance does not prohibit employers from taking adverse action based on dishonesty, which means if an applicant is dishonest about their criminal history, this is a legitimate reason for denying employment.

Our recommendations should not be construed as legal advice. When it comes to developing policies and procedures related to pre employment screening, you should always consult an employment lawyer who is licensed to practice in your state.


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