Washington employers need to review their applications and hiring procedures.  Washington is the latest state to pass Ban the Box legislation; here’s what you need to know.

On March 13, 2018, Governor Jay Inslee Signed the “Fair Chance Act” into law, making Washington the 11^th state to require both public and private employers to delay questions about criminal history.  The new law prohibits employers from asking about arrests or convictions before an applicant is determined otherwise qualified for the position.

This law, like others before it, is aimed at limiting the disparate impact on minority populations who experience a higher arrest and conviction rate.  These criminal records can make it difficult for people to re-enter society when they cannot find good paying jobs.  Pinnacle Investigations has been suggesting ALL employers in every state remove the question about criminal history from the original application as suggested by the EEOC in their guidance put out in April of 2012, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. 

Pinnacle believes employers have the right to use all the tools at their disposal to create a safe, secure workplace and the criminal background check is the central tool in that endeavor.  However, we do recognize the need to also protect the rights of the applicant and to adhere to the laws and regulations which govern our industry.  Your best policy to make sure you are doing the right thing is to implement and follow a written procedure for Individual Assessments on all criminal records.  The individual assessment is the best way to establish Job Relatedness and Business Necessity (JRBN) as it relates to your business. To learn more about these policies and the EEOC guidance, contact us and we can set up a training for your organization.

The question now, how do I ask about criminal history?  Most of these laws allow you to ask the question during the first interview.  The idea being that review of the application or resume indicated the applicant had enough qualifications to move forward with an interview; now the applicant has the chance to explain the circumstances of any criminal history and you have the opportunity assess those circumstances and how they might relate to your hiring decision.  

What do you need to do now?  Make sure your application does not have a question on it about criminal history.  Remove exclusionary language from job postings and descriptions. Create a written policy that creates an individual assessment for all criminal records and train your staff on it.  Speak with your attorney about these policies and make sure you are complying, not just with your local laws, but with the EEOC as well.  Check your local Ban the Box legislation to make sure you are in line with what is required in your area, SHRM has a great resource for this.