In the July Bar Bulletin, we visited the topic of background checks (or at least I did; I hope some of you read it, too).
It's already time to revisit this topic because the City of Seattle recently adopted Ordinance 124201 adding a new Chapter 14.17, "The Use of Criminal History in Employment Decisions," to the Seattle Municipal Code, effective July 20.
Known in the vernacular as "ban the box,"1 the ordinance includes the following principal provisions:
- It prohibits employers from advertising, publicizing or implementing any policy or practice that automatically or categorically excludes all individuals with any arrest or conviction record from any employment position that will be performed in whole or in substantial part (at least 50 percent of the time) within the City.2
- An employer may perform a criminal background check on a job applicant or require a job applicant to provide criminal history information, but only after the employer has completed an initial screening of applications or resumes to eliminate unqualified applicants.3
- Employers may inquire about conduct related to an arrest record. Employers shall not carry out a tangible adverse employment action solely based on the conduct relating to an arrest unless the employer has a legitimate business reason for taking such action.4
- Employers shall not carry out a tangible, adverse employment action solely based on an employee's or applicant's criminal conviction record or pending criminal charge unless the employer has a legitimate business reason for taking such action.5
- Before taking any tangible adverse employment action solely based on an applicant's or employee's criminal conviction record, conduct relating to an arrest record, or a pending criminal charge, the employer shall identify to the applicant or employee the record(s) or information on which it is relying and give the applicant or employee a reasonable opportunity to explain or correct that information.6
- An employer must hold open a position for a minimum of two business days after notifying an applicant or employee that it will be making an adverse employment decision solely based on a criminal conviction record, conduct relating to an arrest record, or a pending charge in order to provide an applicant or employee a reasonable opportunity to respond, correct or explain that information. After two business days, employers may, but are not required, to hold open a position until a pending charge is resolved or adjudicated, or questions about an applicant's criminal conviction history or conduct relating to an arrest are resolved.7
- The ordinance shall not be interpreted or applied as imposing an obligation on the part of an employer to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a conviction record or who is facing pending criminal charges.8
- The ordinance shall not be construed to create a private civil right of action to seek damages or remedies of any kind.9
- The ordinance applies to any person who has one or more employees, or the employer's designee, or any person acting in the interest of such employer. "Employer" includes job placement, referral and employment agencies, but does not include: the U.S. government; the State of Washington (including any office, department, agency, authority, institution, association, society or other body of the State, including the Legislature and the judiciary); or any county or local government other than the City of Seattle.
- The ordinance shall not be construed to diminish or conflict with any requirements of state or federal law. For example, the requirements for detailed background checks for employees who work with children under 16 or vulnerable adults, under RCW 43.43.830 et seq., remain unchanged.10
Effect of the Ordinance
Employers who want to conduct criminal history checks should first review their job descriptions and job duties to determine whether there is a legitimate business reason for conducting the checks. Under the ordinance, a "legitimate business reason" exists where, based on information known to the employer at the time the employment decision is made, the employer believes in good faith that the nature of the criminal conduct underlying the conviction or the pending criminal charge either:
1. Will have a negative impact on the employee's or applicant's fitness or ability to perform the position sought or held, or
2. Will harm or cause injury to people, property, business reputation or business assets, and the employer has considered all of the following 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 elapsed since the conviction or pending criminal charge, excluding periods of incarceration;
- any verifiable information related to the individual's rehabilitation or good conduct, provided by the individual;
- the specific duties and responsibilities of the position sought or held; and
- the place and manner in which the position will be performed.11
Additionally, employers should change their application forms to be consistent with the ordinance.
Employers who have background checks done by a third-party vendor or who outsource parts of their hiring processes should make sure the vendor understands the legal requirements, especially vendors who work on a state or national level and may not be familiar with the Seattle ordinance.
Karen Sutherland is the chair of the Employment and Labor Law Practice Group of Ogden Murphy Wallace, PLLC and a licensed private investigator. She can be reached at firstname.lastname@example.org. This article is a brief summary of a complex area of the law and is not legal advice and should not be relied on for any purpose.
1 This is a reference to the box on some employment forms that asks if the applicant has ever been arrested or convicted of a crime.
2 SMC 14.17.020.A.
3 SMC 14.17.020.B.
4 SMC 14.17.020.D.
5 SMC 14.17.020.E.
6 SMC 14.17.020.F.
7 SMC 14.17.020.G.
8 SMC 14.17.030.C.
9 SMC 14.17.030.E.
10 SMC 14.17.030.B.
11 SMC 14.17.010.