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March 2014

New Criminal Background Check Ordinance Impacts Seattle Employers

On November 1, 2013, Seattle’s Criminal Background Check Ordinance went into effect.  The ordinance, which applies to positions performed at least 50 percent of the time in the City of Seattle, provides that no employer shall advertise a position or implement a policy that categorically excludes all job applicants or employees with criminal convictions or arrests.  However, the ordinance does not apply to employees who will or who may have unsupervised access to children under age sixteen, developmentally disabled persons, or vulnerable adults during the course of employment.  It also does not apply to government employers other than the City of Seattle.

The ordinance prohibits employers from conducting background checks on job applicants prior to the initial screening of the applicants.      

Pursuant to the ordinance, employers may inquire about conduct related to an arrest record, but may not take tangible employment action based solely on the arrest record unless there is a legitimate business reason for taking such action.

In addition, employers cannot take adverse action based solely upon an employee’s or applicant’s criminal conviction or pending criminal charge unless the employer has a legitimate business reason for taking the action.

A “legitimate business reason” is a good-faith belief that the nature of the criminal conduct underlying the conviction or the pending criminal charge will have a negative impact on the applicant’s ability to perform the position sought or held or will harm or cause injury to people, property, business reputation or assets.  The required factors to consider include: (1) the seriousness of the underlying criminal convictions or pending charges; (2) the number and types of convictions and/or charges; (3) the time that has elapsed since the criminal convictions and/or charges; (4) verifiable information regarding rehabilitation of the individual; (5) the duties and responsibilities of the position; and (6) the place and manner in which the position will be performed.

Prior to taking any adverse action based upon an applicant’s or employee’s criminal conviction or charge, an employer must inform the applicant or employee of the records or information on which it is relying and give the applicant or employee a reasonable opportunity to explain or correct the information.  In addition, the employer must hold the position open for at least two business days for the individual to explain. 

The ordinance also prohibits retaliation against individuals who exercise or attempt to exercise their rights. 

The Seattle Office for Civil Rights has enforcement authority and may impose fines of $750 to $1,000 plus attorney fees for each violation.  The ordinance states that it does not create a private right of action to seek damages or remedies. 

To ensure compliance with this new ordinance, employers should review their applications and interview process, and update employee handbooks related to hiring and background checks. 

Employment Law

Employment Law