Washington Expands Criminal History Protections
Washington’s HB 1747 was signed by the governor on April 21, 2025. The Washington Fair Chance Act (FCA), which limits when and how employers can consider criminal records, has been expanded to include more criminal history protections. The changes will take effect in two stages: (1) employers with 15 or more employees will need to comply by July 1, 2026, and (2) employers of all sizes will need to comply by January 1, 2027.
Exceptions Still Apply
The exceptions to the FCA that already existed in the law will remain in place. Employers that need to check and make decisions based on criminal histories, like those that hire employees who will have unsupervised access to children, can (and should!) still do so.
No Inquiries Before a Conditional Job Offer
Employers will be prohibited from asking about or considering an applicant’s criminal record until after a conditional employment offer is made. Employers also won’t be allowed to reject an applicant for failing to disclose their criminal history prior to a conditional job offer. However, employers can tell applicants that a position is subject to a background check that will occur after a conditional offer is made.
No Automatic Exclusion Based on Criminal Record
Employers won’t be allowed to implement a policy or practice that automatically or categorically excludes individuals with a criminal record from any position.
Juvenile Convictions and Most Arrests Can’t Be Considered
Employers will be prohibited from taking adverse action based on an applicant’s or employee’s arrest record or juvenile conviction records. However, they can consider adult arrests if the individual is out on bail or is currently released on their own personal recognizance pending trial.
Legitimate Business Reason Needed
Employers will still be able to take adverse action based on an applicant’s or employee’s adult conviction records, but only if they have a legitimate business reason to do so. An employer has a legitimate business reason if it believes that the conduct underlying the conviction will negatively affect the employee’s or applicant’s ability to perform the job (i.e., they aren’t allowed within a certain distance of a school, and the employer’s business is next door to one) or will cause harm or injury to people, property, its business reputation, or business assets.
If an employer is relying on the harm or injury explanation, it needs to consider and document the following factors:
The seriousness of the conduct underlying the conviction
The numbers and types of convictions
The time that has passed since the conviction (excluding time spent incarcerated)
Evidence of rehabilitation, good conduct, work experience, education, or training
The specific duties and responsibilities of the position
The place and manner in which the position will be performed
While having a legitimate business reason for denying employment based on arrest or conviction history was already a best practice, Washington is now making the existence of a legitimate business reason a requirement when taking adverse action based on criminal history.
Adverse Action Notices Required
If an employer intends to take adverse action against an applicant or employee based on their adult conviction record, the employer will first be required to do all of the following:
Notify the applicant or employee of the intention to take adverse action on the basis of a criminal record
Identify the specific criminal record that the legitimate business decision is based on
Hold the position open for at least two business days to provide the applicant or employee an opportunity to correct or explain the record or provide information on their rehabilitation, good conduct, work experience, education, or training
After at least two business days have elapsed, if the employer decides to continue with the adverse action decision, it will be required to provide the applicant or employee with written notice of the decision that includes both of the following:
Specific documentation regarding its reasoning for the decision and an assessment of the relevant factors, including how the conviction impacts the position or business operations
An explanation of its consideration of the applicant’s or employee’s rehabilitation, good conduct, work experience, education, and training
Notice of FCA Rights Required
If an applicant voluntarily discloses their criminal history during an interview, or if an employer informs an applicant that a position is subject to a post-offer background check, the employer is required to inform the applicant, in writing, of specific protections afforded by the FCA. The employer also needs to provide the applicant with the Washington Fair Chance Act Guide for Employers & Job Applicants, which is available in English and Spanish on the Attorney General’s website.
Certain Federal Contract Positions Excluded
The updated law won’t apply to jobs covered by a federal contract that specifically prohibits workers with criminal records.
Action Items:
Make hiring managers aware of these new protections and update hiring materials to ensure that criminal history is not asked about or considered before a conditional offer is made.
Remove any blanket bans on hiring applicants with criminal records for specific positions.
Revise adverse action procedures to include both written notice requirements, including the two-business-day waiting period.