Washington State’s Fair Chance Act is a critical piece of legislation designed to expand protections for applicants and employees with criminal records. HB 1747 amends Washington’s Fair Chance Act and introduces modifications that will soon impact hiring practices across the state. Below are key highlights from the amendments.
The New Landscape of the Fair Chance Act
The amendments, which take effect July 1, 2026, for employers with 15 or more employees, introduce several important changes to how employers can consider and use an applicant’s criminal history. These updates are designed to limit an employer’s ability to use certain criminal records in employment decisions and create a more structured process for evaluating an individual’s background.
Key Definitions and Prohibitions
- Restrictions on Inquiries and Prohibited Policies. An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration for any employment position. This includes rejecting an applicant for failing to disclose a criminal record prior to receiving a conditional offer of employment. Additionally, an employer may not take a tangible adverse employment action against an applicant or employee based on an arrest record or juvenile conviction record. This restriction does not apply to adult arrests where the individual is out on bail or released on their own recognizance while awaiting trial.
- Individualized Assessment. If an employer intends to take an adverse employment action based on a person’s adult conviction record, they must have a “legitimate business reason” and consider and document the following six factors, in accordance with RCW 49.94.010, before making an adverse employment decision based on an adult criminal conviction:
- The seriousness of the conduct underlying the conviction.
- The number and types of convictions on the individual’s record.
- The amount of time that has passed since the conviction, excluding any periods of incarceration.
- Any verifiable evidence of rehabilitation or good conduct, including work experience, education, training, and other relevant information provided by the individual.
- The specific duties and responsibilities of the position being sought or currently held.
- The place and manner in which the job will be performed.
- Notice Requirement. Before conducting a background check or if an applicant voluntarily discloses criminal history information, the employer must immediately provide a written disclosure outlining the relevant provisions of Washington State’s Fair Chance Act. This disclosure must also include a copy of the Attorney General’s Fair Chance Act guidance document.
- Pre-Adverse Action Disclosure and Documentation. If an employer bases an adverse decision on a conviction history, they must notify the applicant or employee of the specific record being considered and hold the position open for at least two business days to allow a reasonable opportunity to correct or explain the record or submit evidence of rehabilitation, good conduct, experience, education, or training. If the employer proceeds with the action, it must issue a written decision detailing the reasons, including how the record relates to the position and the employer’s assessment of any mitigating information provided.
Increased Penalties and Effective Dates
The amendments also increase the statutory penalties for non-compliance with the Fair Chance Act. Employers may face fines of up to $1,500 for a first violation, up to $3,000 for a second violation, and up to $15,000 for each subsequent violation. While there is no private right of action under the law, penalties accrue per aggrieved job applicant or employee for each violation, emphasizing the importance of consistent and compliant hiring practices.
These provisions will also become applicable to employers with less than 15 employees beginning on January 1, 2027.
Next Steps for Employers
To ensure a smooth transition and maintain compliance with these new regulations, employers in Washington should take the following steps:
- Update Hiring Policies and Applications: Review and revise all employment applications and hiring policies to remove questions about criminal records. Ensure that background checks are only conducted after a conditional offer of employment has been extended.
- Train HR and Hiring Managers: Provide training to all personnel involved in the hiring process on the new requirements, including the appropriate timing for inquiries and the documentation required for adverse employment actions.
- Establish a Clear Process: Develop a documented process for evaluating criminal records based on the six factors outlined in the act.
- Consult with Legal Counsel: Given the complexity of the new law and the increased penalties, it is recommended to consult with legal counsel to ensure your policies and practices are fully compliant with the Washington Fair Chance Act.
