On June 10, 2013, the Seattle city council unanimously passed Council Bill 117796, which Mayor Mike McGinn signed into law on June 20, 2013. The provision, which takes effect on November 1, 2013, will dramatically impact the ability of employers in and around Seattle to ask about—and consider—an applicant's criminal history when making employment decisions. This WSGR Alert provides some basic information on the new law.
Who Does the Law Impact?
The law impacts all private employers with one or more employees where 50 percent or more of the employment in question is performed in the city of Seattle. Accordingly, the law will apply to most businesses based in Seattle and its surrounding towns as long as a business has one or more employees spending at least half of their time working within Seattle's city limits.
What Does the Law Require?
The law allows employers to ask about an applicant's criminal or arrest record only after completing an initial screening of applications or resumes to eliminate unqualified applicants. Even then, an employer cannot reject an otherwise qualified applicant "solely based on" his or her conduct relating to an arrest and conviction. Rather, an employer must first provide the applicant with notice of, and a reasonable opportunity (at least two full business days) to explain or correct, the information on which the employer is making its decision. An employer must also demonstrate a "legitimate business reason" for its decision. A "legitimate business reason" exists where, based on the information the employer knows at the time, the employer believes in good faith that the nature of the applicant's criminal conduct underlying the conviction or pending criminal charge will either negatively impact the applicant's fitness or ability to perform the position sought or held, or will harm or cause injury to people, property, business reputation, or business assets. Moreover, to arrive at a legitimate business reason, the employer must consider the following specific factors:
the seriousness of the underlying criminal conviction or pending criminal charge;
the number and types of convictions or pending criminal charges;
the time that has passed since the conviction or pending charge (excluding time spent in incarceration);
any verifiable information the applicant provides that is related to his or her rehabilitation;
the specific duties and responsibilities of the position; and
the place and manner in which the duties of the position will be performed.
Who Enforces the Law and What Are the Penalties for Non-conformance?
The City of Seattle Office for Civil Rights (SOCR) is tasked with enforcing the law, and there is no private right of action for complaining applicants or employees. After November 1, SOCR may initiate a claim against an employer even without prompting by an applicant who feels he or she has been unjustly been turned down for a position.
For a first violation, SOCR provides an employer with a notice of infraction and an offer of assistance. For a second violation, SOCR will issue a $750 penalty and require payment of SOCR's attorneys' fees. For subsequent violations, an employer will pay a $1,000 penalty and SOCR's attorneys' fees. Additionally, employers may not retaliate against any individual for exercising his or her rights under the law.
SOCR will maintain data on the number of complaints filed, demographic information on the complainants, the number of investigations conducted, and their disposition every six months for the two years following the passage of the ordinance to evaluate demographics.
What Should Employers Do to Ensure Compliance?
Before the law goes into effect in November, employers should consult legal counsel to ensure that their organization's policies, procedures, and job postings are compliant with this new legislation to avoid drawing unnecessary attention from SOCR.