When crafting job advertisements, revising job applications, or drafting interview questions, employers should be aware that local and state laws now prohibit employers from making inquiries into an applicant’s criminal background until later in the hiring process.
The City of Spokane enacted a “Ban the Box” ordinance (Ordinance No. C-35564) in June 2018; enforcement began January 1, 2019. The reach of the ordinance is fairly broad, applying to all employers within the City of Spokane (including temporary staffing agencies) and limits when employers can inquire into and consider the criminal history of a job applicant. In short, an employer may inquire into and generally consider a candidate’s criminal history, but only after conducting an in-person, telephonic, video interview, or if there is no interview, after a conditional offer of employment has been made. The ordinance creates a blanket prohibition on inquiring, disqualifying, or rejecting an applicant based on his or her criminal history before an interview or conditional offer of employment.
In addition, Spokane’s ordinance prohibits employers from advertising employment openings in a way that excludes people with arrest or conviction records (such as a job advertisement stating “no felons” or “no criminal background”); including questions on an employment application inquiring about an arrest or conviction record; or making any other pre-interview inquiries or otherwise obtaining information about an applicant’s arrest or conviction record.
Once the applicant has been interviewed or a conditional offer of employment has been made, employers may thereafter inquire about and consider an applicant’s criminal history and arrest records, complying with all applicable laws and EEOC guidelines (meaning the disqualification or exclusion of an applicant because of an arrest or conviction should be job-related and consistent with business necessity).
The city ordinance does not apply to any employer hiring an employee who will have unsupervised access to children under the age of 18, a vulnerable adult, or a vulnerable person as defined under state law; to any law enforcement agency as defined by state law; or to any employer conducting criminal background checks as specifically permitted under a state or federal law.
Even if an employer is not covered by the city’s ordinance, Washington passed the Washington Fair Chance Act (WFCA), which took effect on June 7, 2018. The components of the state law, which apply to both public and private sector employers, are quite similar to the city ordinance.
Generally, employers throughout the state are prohibited from advertising in a way that excludes people with arrest or conviction records from applying; and are prohibited from including any question on an employment application, inquiring orally or in writing, or otherwise receiving any information about an applicant’s arrest or conviction record “until after the employer has initially determined that the applicant is otherwise qualified for the position.” The WFCA does not specifically address the steps following disclosure of a conviction after the “otherwise qualified” stage, but employers should keep in mind their obligations to comply with EEOC guidelines (as noted above), and any obligations under the Fair Credit Reporting Act if they plan to obtain criminal history reports from third party vendors. There are various enumerated exceptions to the WFCA which are similar to those articulated in the Spokane ordinance.
In summary, these local and state Ban the Box laws do not prohibit the employer from inquiring into arrest and conviction records – they simply limit when in the hiring process the employer can access and use such information.
Angela Hayes, Senior Legal Counsel