Seattle City Council Passes Ordinance Restricting Use Of Criminal Background Checks

by Perkins Coie

On June 10, 2013, the Seattle City Council unanimously approved the “Job Assistance Bill,” which restricts when and how employers may seek and use criminal background information.  Under the new law, employers in Seattle may no longer require job applicants to check a box indicating whether they have ever been arrested or convicted of a crime.  Nor may employers include “no felons need apply” or similar language in job postings.

In addition to “banning the box,” the ordinance forbids employers from performing criminal background checks on job applicants until after an employer extends a conditional offer of employment to an applicant.  Moreover, before taking any adverse employment action based on an applicant’s criminal history, an employer must identify the source of the criminal records and give the applicant a reasonable opportunity to explain or correct the information.  Employers must hold a conditional job offer open for two days to allow an applicant time to explain his or her criminal history or refute the record.

The ordinance allows employers to consider conviction records or conduct related to an arrest (but not the arrest record alone) for a “legitimate business reason.”  The ordinance defines “legitimate business reason” as an employer’s good-faith belief that the nature of the criminal conduct underlying the charge or conviction will either have a negative impact on the employee’s or applicant’s fitness or ability to perform the position or will harm people, property, or the business reputation or business assets of the employer.  To determine whether there is a legitimate business reason, the ordinance instructs an employer to consider factors including the seriousness of the crime, the number and types of convictions, the time elapsed since conviction or charge, rehabilitation and good conduct, the duties and responsibilities of the position, and the place and manner in which the position will be performed. 

Although significantly limiting employers’ use of criminal background checks, the ordinance does not apply to applicants seeking jobs in law enforcement, policing, crime prevention, security, criminal justice or private investigative services, or to applicants for jobs that allow unsupervised access to children under age sixteen, developmentally disabled persons or vulnerable adults.  Nor does it apply to jobs for which state or federal law requires an employer to consider an applicant’s criminal records for employment purposes.

In addition to the exclusions for certain positions and the provision allowing employers to consider criminal history for legitimate business reasons, the final version of the ordinance includes several important concessions to employers.  The ordinance does not create a private right of action for an applicant to sue a prospective employer if the applicant is turned down for a position.  The final ordinance excludes a provision that would have required employers to fill out a lengthy form describing why they declined an applicant, and it does not require an employer to accommodate an employee’s obligations to the criminal justice system, including scheduling parole hearings.  Although the Seattle Office for Civil Rights (SOCR) is responsible for enforcing the new law, SOCR is required to convene a panel of stakeholders, including those from the employer community, to aid in developing regulations to implement the ordinance.

Going forward, employers must revise application materials for positions affected by the ordinance by removing questions about criminal history, and they must remove “felons need not apply” and similar language from job postings. 

The ordinance is effective beginning November 1, 2013 and applies to all employees who spend at least 50% of their time in Seattle.  It applies to all employers who employ one or more employees, but the ordinance is not explicit as to whether it applies to employers located outside of Seattle with employees who work 50% or more within Seattle.  Federal and state government employees as well as non-Seattle county and local government employees are excluded.  The full text of the ordinance may be found here.

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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