Hiring in Seattle? Rules for Criminal Background Checks

In 2013, the City of Seattle enacted the “Fair Chance Employment” ordinance governing how criminal background checks are to be used in the hiring process. The rule went into effect on November 1, 2013.  SeeSeattle Municipal Code 14.17.

The rule limits the extent to which an arrest or conviction may be used to potentially disqualify job applicants.   The goal is to reduce recidivism and to provide more opportunity for those who have paid their debt to society to be gainfully employed.

So what size employers are affected? Any business with one or more employees, except certain types of jobs.

Which employees are subject to the ordinance?  Employees who provide services 50% or more of the time within the city limits.  This means it may apply to employers who are based outside of Seattle, but whose employees work at least 50% of the time in Seattle.  It applies to applicants for full time, part time and temporary employment. It applies to those positions that will require the employee to substantially work in Seattle, even if the employer is not based in Seattle.   So, for example, if your company is based in Edmonds, and you routinely send employees to jobsites in Seattle so that at least 50% of their time is spent on Seattle projects, expect that the ordinance will apply to applicants for those positions.

Does the ordinance apply to all employees in Seattle? No. It does not apply to individuals in law enforcement, policing, crime prevention, security, criminal justice or private investigation services.  It also does not apply to employees who will or may have unsupervised access to children under 16 years of age, developmentally disabled persons, or vulnerable adults.

So what are the rules? A few of the key requirements are: (1)  the ordinance prohibits automatic disqualification from employment simply because the applicant has either an arrest or conviction record; (2) questions about criminal history and conducting background checks must wait until afteran employer conducts an initial screening of applicants; (3) if a background check is done, the employer must give the applicant a chance to explain or correct the criminal history information, and;(4) the employer must have a “legitimate business reason” to deny the applicant a job based on a conviction record.

What’s a “legitimate business reason”?  It’s a bit subjective, but the ordinance provides some guidance: (1) the conviction (or pending charge) would have a “negative impact” on the employer or on the applicant’s ability to do the job, and (2) in arriving at this conclusion, the employer has considered several factors, including:

  1. the seriousness of the conviction or charge;
  2. the number and types of convictions or pending charges;
  3. how long it’s been since the conviction or charge (not including periods of incarceration);
  4. verifiable information related to the rehabilitation or good conduct of the individual;
  5. the specific duties and responsibilities of the position sought or held, and;
  6. the place and manner in which the position will be performed.

SeeS.M.C. 14.17.010

Bottom line – if an applicant is rejected because of a criminal history, the employer will have to demonstrate that it considered all these factors. If the employer cannot show that these factors were actually considered, the chances of OLS sustaining a violation (and imposing penalties) is much higher.  Though vague, the ordinance provides a bit of a roadmap for how to avoid a violation, and smart employers will follow it.

To help, the City’s Office of Labor Standards has a poster with the information that employers are required to provide about the ordinance, and employee’s rights under it.  Use the poster. It’s free – and mandatory. Willful failure to post it can be a $500 penalty. Fortunately, it’s easy to comply. Pick up the workplace poster from the OLS office in downtown Seattle, or simply go its website and download it:  https://www.seattle.gov/laborstandards/outreach/publications

OLS is the agency that investigates complaints of the ordinance being violated, and if it is found that an employer did violate it, the Director of OLS can impose penalties on the employer such as payment of unpaid wages, fines, and interest due (among other costs).  The minimum penalty for a first violation is $500 – in addition to other damages an employee or applicant may have.  A second violation is at least $1,000.  Penalties don’t get cheaper over time.

This is just a summary with some highlights of the ordinance, and is not legal advice. If you have questions about the ordinance, consult a lawyer.

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