Written By ESR News Blog Editor Thomas Ahearn
On March 13, 2018, Washington Governor Jay Inslee signed into law the Fair Chance Act (HB 1298) to extend “Ban the Box” legislation protections to applicants seeking jobs with both public and private employers in the state, according to a news release from the National Employment Law Project (NELP).
The Fair Chance Act – which takes effect June 7, 2018 – prohibits employers from asking about arrests or convictions before applicants are determined otherwise qualified for a position, adds a new chapter to Title 49 RCW (Revised Code of Washington), create a new section, and prescribe penalties. Specifically, the law states:
- An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record.
- An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state “no felons,” “no criminal background,” or otherwise convey similar messages are prohibited.
- An employer may not implement any 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. Prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
The law does not apply to employers hiring workers with unsupervised access to children or vulnerable adults, employers required by federal or state law to ask about criminal records, law enforcement or criminal justice agencies, employers hiring volunteers, and certain self-regulatory organizations.
Maximum penalties for violating the law are as follows: A notice of violation and offer of agency assistance for the first violation; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation.
With more than one in five adults in Washington State having a conviction or arrest record that can show up on a routine criminal background check for employment, the Fair Chance Act will help ensure that these 1.2 million people are judged by their qualifications and work experience.
Washington becomes the 11th state to adopt Ban the Box legislation that requires both public and private employers to delay background checks and inquiries about the conviction records of job applicants until they first have had an opportunity to present their qualifications for the position.
With the addition of Washington, approximately one in three adults now live in a state or locality with Ban the Box laws for private employers, according to NELP. Nationwide, 31 states and more than 150 cities and counties have adopted Ban the Box laws regulating either public or private employers.
The “Ban the Box” movement seeks to remove the box on job applications that applicants are asked to check if they have a criminal record and delays that question until later in the hiring process after qualified applicants have the opportunity to show their knowledge, skills, and abilities to do a job.
A study released by the NELP in 2011 entitled “65 Million Need No Apply” estimated that approximately 64.6 million ex-offenders in the United States – more than one in four American adults – have a criminal record. NELP has since revised the number of potential ex-offenders up to 70 million people.
The fact that employers in the United States will have to comply with a myriad of overlapping local and statewide Ban the Box laws now is one of the “ESR Top Ten Background Check Trends” for 2018 as selected by leading global background check firm Employment Screening Resources (ESR).
“Originally, Ban the Box was concerned with the initial the application process but now many of these laws have morphed into Fair Chance legislation that also imposes processes for how criminal information is utilized,” says ESR founder and CEO Attorney Lester Rosen, the author of ‘The Safe Hiring Manual.’
“In other words, since Ban the Box is often no longer limited to just the application process, a consistent statewide Ban the Box policy where employers are given some sort of immunity if they hire an ex-offender is likely the most effective means of giving ex-offenders a second chance,” explains Rosen.
More Ban the Box Information from ESR
Employment Screening Resources (ESR) – a leading global background check firm – supports sensible Ban the Box laws. ESR offers employers a Ban the Box page with information, resources, and updates about Ban the Box on the ESR website at www.esrcheck.com/Legislative-Compliance/Ban-the-Box/.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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