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Seattle Joins The 'Limit Your Use of Criminal Records' Wave
June 25, 2013 posted by Steve Brownstein
Effective November 1, 2013, Seattle, Washington will join various other jurisdictions (most recently Minnesota, Indiana, North Carolina and Buffalo, New York) that limit inquiries into and the use of criminal records for employment purposes.1 On June 10, 2013, the Seattle City Council adopted Council Bill 117796 (the "Ordinance"), which Mayor Mike McGinn is expected to sign.2 The Ordinance provides for administrative enforcement but affords no private right of action. Nonetheless, employers with operations or employees in Seattle should review the prohibitions in the Ordinance and should also continue to monitor related developments across the U.S.
Using criminal record information for employment purposes is currently a hot-button issue. In addition to the passage of ordinances such as this, earlier this week the Equal Employment Opportunity Commission (EEOC) filed two new disparate impact discrimination lawsuits asserting that the employers used criminal records for employment purposes in a manner that violates Title VII of the Civil Rights Act of 1964.3 There has also been a considerable spike in class action lawsuits filed against employers for using background checks in violation of the federal Fair Credit Reporting Act (FCRA).4
Limitations Under the Ordinance
No "Blanket Exclusion." Employers may not advertise, publicize or implement any policy or practice that automatically excludes all individuals with any arrest or conviction records from employment for a job that will be performed at least 50% of the time within city limits.
No Criminal Background Checks Until After Initial Screening. Employers may continue to perform criminal background checks, but only after the employer has completed an initial screening of applications or resumes to eliminate unqualified applicants. A "criminal background check" means requesting an individual's conviction record or criminal history record information from the Washington State Patrol or other entity that compiles and maintains such records.
Limitations Regarding Arrest Records. Employers may inquire about the conduct related to an arrest record, but may not carry out a tangible adverse employment action "solely based on" such a record. Employers must also have a legitimate business reason for taking any tangible adverse employment action "solely based on" the conduct relating to an arrest.
Limitations Regarding Conviction Records and Pending Charges. Employers may 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.
Notice Obligation and Waiting Period. Before taking any tangible adverse employment action "solely based on" an individual's criminal conviction record, the conduct relating to an arrest record, or pending criminal charge, the employer must identify for the individual the record(s) or information on which the employer is relying and provide the individual with a "reasonable opportunity" to explain or correct that information. Employers must hold open a position for a minimum of two business days after providing such notice in order to afford the individual 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.
No Retaliation. Employers may not retaliate against any individual for exercising his or her rights under the Ordinance.
