Washington Background Check Laws

Washington's 'My Health My Data Act' (HB 1320) and other provisions establish comprehensive ban-the-box requirements. Employers are generally prohibited from inquiring about an applicant's criminal record until after determining that the applicant is otherwise qualified for the position. This includes not asking about criminal history on job applications, during initial interviews, or through background checks until a conditional offer of employment has been made. There are exceptions for positions where a conviction would legally disqualify an applicant or for positions working with vulnerable populations. Employers must also conduct an individualized assessment before taking adverse action based on criminal history.

Washington law generally aligns with the FCRA but adds specific restrictions, particularly regarding criminal record inquiries (ban-the-box) and the use of certain types of information. While the FCRA sets standards for consumer reports, Washington's ban-the-box laws dictate *when* an employer can initiate a criminal background check, which is typically later in the hiring process than the FCRA alone might permit. Additionally, Washington has specific rules about the consideration of criminal records, requiring an individualized assessment.

Washington law prohibits employers from seeking an applicant's wage or salary history from the applicant or their current or former employer. Employers also cannot require that an applicant's prior wage or salary history meet certain criteria. However, an employer may confirm an applicant's wage or salary history if the applicant voluntarily discloses it or if the employer has obtained written authorization from the applicant to confirm it after an offer of employment, including compensation, has been made. (RCW 49.58.100)

Washington law does not explicitly impose a general seven-year reporting limitation on criminal convictions for employment purposes, unlike the FCRA for non-conviction information. However, the state's ban-the-box provisions effectively limit when criminal records can be accessed and considered. Employers must also be mindful of the individualized assessment requirement, which implicitly limits the use of older, irrelevant convictions. Non-conviction information (arrests not leading to conviction, dismissed charges) generally falls under FCRA's seven-year reporting limit for positions with salaries under a certain threshold.

In Washington, if a criminal record has been expunged, vacated, or sealed by a court order, it generally cannot be reported or considered by employers for employment purposes. Employers should treat such records as if they never occurred. Requesting or using expunged or sealed records can lead to legal challenges. It is crucial for background check providers to ensure their reports do not include such information.

Washington's ban-the-box law (often referred to as a 'Fair Chance Act') is the primary fair chance hiring legislation. It ensures that applicants with criminal histories have a fair opportunity to be considered for a position based on their qualifications before their criminal past is revealed. The individualized assessment requirement further reinforces fair chance principles by requiring employers to consider the nature and gravity of the offense, the time elapsed since the conviction or completion of the sentence, and the nature of the job held or sought.