Seattle City Council Enacts Controversial and Restrictive Criminal Background Check Ordinance

by Davis Wright Tremaine LLP
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On June 10, 2013, the Seattle City Council passed an ordinance significantly restricting private employers’ ability to rely on criminal background checks to screen applicants for jobs in the City of Seattle. If Mayor McGinn approves the ordinance (as expected), the new law will take effect Nov. 1, 2013. Once in effect, employers will no longer be able to inquire about a job applicant’s criminal history at the initial application stage—a so-called “ban the box” approach. The ordinance further prohibits employers from taking adverse employment action against job applicants or employees based on criminal conduct, unless such conduct will have a negative impact on the applicant’s or employee’s ability to do the job sought, or will harm or cause injury to people, property, or business assets. All employment decisions are subject to investigation and review by the Seattle Office for Civil Rights.

The ordinance covers all private employers with one or more employees, and applies to all positions requiring at least 50 percent of working time within the City of Seattle.

Key aspects of the Seattle ordinance

  • Employers cannot inquire about an applicant’s criminal background until after the employee completes an “initial screening” to eliminate unqualified applicants.
  • Employers cannot take adverse employment action based solely on an applicant’s or current employee’s arrest record.
  • Employers cannot take adverse employment action based on an applicant’s or current employee’s pending criminal charges, a conviction record, or conduct related to an arrest, unless the employer has a “legitimate business reason” for taking such action and considers several other enumerated factors relating to the specific criminal background, job in question, and individual applicant.
  • A “legitimate business reason” is a good faith belief that the criminal conduct or pending charge will (not may) have a negative impact on the applicant’s or current employee’s ability to do the job sought or held, or will (not may) harm or cause injury to people, property, or business assets.
  • Before taking any adverse action based solely on an applicant’s or employee’s criminal conduct or pending charge, an employer must inform the applicant of the reason and give the applicant or current employee a chance to explain or correct the information. When hiring for an open position, the employer must also hold the position open for two days to give the applicant or current employee the opportunity to respond.
  • The ordinance expressly exempts positions in certain fields, including law enforcement and security. It also does not apply to positions that may have unsupervised access to children, disabled persons, and vulnerable adults.
  • The ordinance states that it creates no private right of action (but says nothing about possible tort claims, like negligent hiring, retention, or supervision).
  • The Seattle Office of Civil Rights has enforcement authority, may impose fines ($750-1000 per offense, plus attorney’s fees, and may initiate investigations of alleged violations with or without a complaint by a charging party.
  • The Seattle Office of Civil Rights will be tasked with issuing implementing rules.

DWT is planning a webinar in the coming weeks to provide additional guidance to employers on Seattle’s new criminal background check ordinance. We will also send updates as the rules implementing the new ordinance take shape in coming months.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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