Effective November 1, 2013, Seattle will restrict the use of criminal background checks by employers. The ordinance is broad in scope and covers all private employers with one or more employees in a position that will be performed, in whole or in substantial part (at least 50 percent of the time), within the city of Seattle. Certain positions are excluded from the restrictions of the ordinance, including those with job duties that include law enforcement, policing, crime prevention, security, criminal justice, or private investigation services, as well as positions that will have unsupervised access to children under 16 years of age, developmentally disabled persons, or vulnerable adults.
Timing. While the ordinance does allow employers to perform a criminal background check on applicants and to require applicants to provide criminal history record information, the employer may do so only after it has completed an initial screening of applications or resumes to eliminate unqualified applicants.
Use/Consideration. The ordinance also restricts how employers can use an applicant’s or employee’s arrest and conviction history in the following ways:
- An employer cannot take an adverse employment action that is based solely on an applicant’s or employee’s arrest record, since an arrest is not proof that a person has engaged in unlawful conduct.
- Although employers may inquire about conduct related to an arrest record, they cannot take adverse employment actions solely based on this conduct unless the employer has a legitimate business reason for taking such an action.
- Employers cannot take adverse employment actions against an applicant or employee that is based solely on that applicant’s or employee’s criminal conviction record or pending criminal charge, unless the employer has a legitimate business reason for taking such an action.
A legitimate business reason exists where:
(1) the employer believes in good faith (based on the information known to the employer at the time that an employment decision is made) that the nature of the criminal conduct underlying a conviction or pending criminal charge:
(a) will have a negative impact on the applicant’s or employee’s fitness or ability to perform the position sought or held, or
(b) will harm or cause injury to people, property, business reputation, or business assets, and
(2) the employer has considered the following factors:
(a) the seriousness of the underlying criminal conviction or pending charge;
(b) the number and types of convictions or pending charges;
(c) the time elapsed since the conviction or pending charge (excluding periods of incarceration);
(d) any verifiable information related to the individual’s rehabilitation or good conduct that is provided by the applicant or employee;
(e) the specific duties and responsibilities of the position sought or held; and
(f) the place and manner in which the position will be performed.
Pre-Adverse Action Requirement. Prior to taking adverse action based solely on an applicant’s or employee’s conviction record, the conduct relating to an arrest record, or pending criminal charge, the employer shall identify to the applicant or employee the record or information in question and give the applicant or employee a reasonable opportunity to explain or correct the information.
Post-Adverse Action Requirement. If an employer takes adverse action against an applicant or employee (again based solely on the individual’s criminal conviction record, the conduct relating to an arrest record, or a pending charge), the employer must hold open a position for a minimum of two days after notifying the applicant or employee that it will be taking an adverse action against him or her, in order to provide the applicant or employee a reasonable opportunity to respond, correct, or explain that information. After those two days, the employer may, but is not required to, hold open a position until a pending charge is resolved or until questions about an applicant’s criminal record are resolved.
Violations of the Ordinance/Retaliation. Under its terms, an employer violates the Seattle ordinance if it (1) interferes with, restrains, or denies the exercise (or attempted exercise) of any rights under the ordinance; or (2) retaliates against an applicant or employee who has exercised in good faith (a) the right to file a complaint alleging a violation of this ordinance; (b) the right to cooperate in an investigation concerning a violation of this ordinance; or (c) the right to oppose any policy, practice, or act that is unlawful under the ordinance.
Advertisements, etc. The Seattle ordinance specifically prohibits employers from advertising, publicizing, or implementing any policy or practice that automatically excludes all individuals with any arrest or conviction record from any employment position that will be performed, in whole or in substantial part, in Seattle.
Causes of Action and Damages. Although the ordinance does not create a private civil right of action to seek damages or remedies of any kind, it does empower the Seattle Office for Human Rights to investigate and enforce violations. The Office for Human Rights may initiate: (1) an investigation on its own; or (2) enforcement procedures after it has (a) received a complaint from an applicant (or the representative of an applicant) who feels unjustly treated, or (b) when the office has reasonable cause based on substantial and verifiable information to believe that an employer has violated the prohibition on advertising, publicizing, or implementing any policy or practice that automatically excludes all individuals with any arrest or conviction record from employment positions. The ordinance also authorizes the Office for Human Rights to issue notices of infraction and monetary penalties (of up to $1,000 for each violation) and, in certain situations, seek attorneys’ fees.
Interplay with Other Federal and State Laws. Please keep in mind that other laws—including state and federal laws governing background checks (e.g., the EEOC 2012 Guidance)—still apply to Seattle employersThus, employers covered by the Seattle ordinance should ensure that they are also in compliance with all other federal and state laws.
State and certain municipal background check requirements, including these city of Seattle requirements, are summarized in the firm’s O-D Comply: Background Checks subscription materials, which are updated and provided to O-D Comply subscribers as the law changes.
Gustavo (“Gus”) A. Suárez is of counsel in the Greenville office of Ogletree Deakins and is a member of the Ogletree Deakins Background Check Advice Team, which can be reached at email@example.com.