At a Glance
- Effective July 1, 2026, Washington's Fair Chance Act will further restrict the use of criminal records by covered employers.
- Covered employers face increased penalties after the law takes effect.
Washington State has an existing fair chance law (discussed here) but the statute, as amended by HB 1747, will impose additional obligations on employers that consider criminal records when vetting job applicants or employees. The amended statute takes effect for most employers in July 2026 and so employers should plan to update their criminal record screening policies and standard forms of notice.1
Expanded Prohibitions on Covered Employers
The amended statute will make the following actions unlawful:
- Inquiring about criminal records before first extending a conditional job offer.
- Taking a tangible adverse employment action2 based on an applicant's or employee's arrest record3 (excluding an adult arrest in which an individual is out on bail or released on their own personal recognizance pending trial) or juvenile conviction record.4
- Taking a tangible adverse employment action based on an applicant's or employee's adult conviction record,5 unless the employer has a legitimate business reason for taking such action.6
Expanded Obligations for Covered Employers
Employers must provide a form of pre-adverse action notice to the applicant or employee before taking a tangible adverse employment action. The notice must inform the applicant or employee of the record on which the employer is relying for purposes of assessing its legitimate business reason. The employer must hold open the position for a minimum of two business days to provide the applicant or employee a reasonable opportunity to correct or explain the record or provide information on the applicant's or employee's rehabilitation, good conduct, work experience, education, and training.
Employers also must provide a form of adverse action notice if they decide to take the tangible adverse employment action. Specifically, employers must provide such individuals with a written decision, including specific documentation as to the employer's reasoning and assessment of each of the relevant statutory factors, including the impact of the conviction on the position or business operations, and the employer's consideration of the applicant's or employee's rehabilitation, good conduct, work experience, education, and training.
Increased Penalties
The amendment increases the amount of the potential penalties for the first, second, and subsequent violations. The amendment also confirms that any penalties must be imposed per aggrieved job applicant or employee, for each violation.
Recommendations
Employers with operations in Washington should evaluate necessary changes in when and how they inquire into criminal history during the hiring process. They should also consider whether to undertake a broader (and privileged) assessment to strengthen their compliance with federal, state, and local employment laws that regulate use of a candidate's criminal history (including in Seattle). Suggested action items for employers with employees in Washington and other jurisdictions with fair chance hiring laws are as follows:
- Review and update job applications and related forms for impermissible inquiries regarding criminal records;
- Review and update workplace postings to help ensure all required postings are included;
- Review and update company webpages for necessary additions about fair chance hiring;
- Provide training to recruiters and other personnel involved in posting job openings;
- Provide training to personnel who conduct job interviews and make or influence hiring and staffing decisions to explain permissible inquiries into, and uses of, criminal history;
- Provide training to personnel involved in ordering and adjudicating background reports;
- Review written and electronic communications about the hiring process, including conditional job offer templates and pre-adverse action and adverse action notices; and
- Review the hiring and screening process to help ensure compliance, including the timing of background checks, the distribution of mandatory notices, and the application of mandatory deferral periods.
Footnotes
1. This amended act applies to employers with 15 or more employees beginning July 1, 2026. It applies to employers with fewer than 15 employees beginning January 1, 2027.
2. "Tangible adverse employment action" means a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee.
3. "Arrest record" means any record of or information about an arrest or pending charge for criminal conduct without a conviction, adjudication, finding of guilt, or other finding adverse to the subject.
4. "Juvenile conviction record" means any record of or information about a juvenile adjudication or other finding of guilt pursuant to Title 13 RCW or other juvenile court system. It also includes information related to the conviction or other finding adverse to the subject including, but not limited to, any citation, arrest record, or probable cause statement.
5. "Adult conviction record" means any record of or information about criminal conduct resulting in an adult criminal conviction, finding of guilt, or other finding adverse to the subject, including an acquittal due to a finding of not guilty by reason of insanity, a dismissal by reason of incompetency, or a dismissal entered after a period of probation, suspension, or deferral of sentence. It also includes information related to the conviction or other finding adverse to the subject including, but not limited to, any citation, arrest record, or probable cause statement.
6. "Legitimate business reason" means that, based on information known to the employer at the time the employer makes the decision regarding a tangible adverse employment action, the employer believes in good faith that the nature of the criminal conduct underlying the adult conviction record will: [¶] (a) Have a negative impact on the employee's or applicant's fitness or ability to perform the position sought or held; or [¶] (b) Harm or cause injury to people, property, business reputation, or business assets, and the employer has considered the following factors, and documented as such in accordance with RCW 49.94.010: [¶] (i) The seriousness of the conduct underlying the adult conviction record; [¶] (ii) The number and types of convictions; [¶] (iii) The time that has elapsed since the conviction, excluding periods of incarceration; [¶] (iv) Any verifiable information related to the individual's rehabilitation, good conduct, work experience, education, and training, as provided by the individual; [¶] (v) The specific duties and responsibilities of the position sought or held; and [¶] (vi) The place and manner in which the position will be performed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
