Seattle employers are now more restricted in their ability to inquire about or make employment decisions based on the criminal records of applicants and employees. On November 1st, the Seattle Job Assistance Ordinance, SMC 14.17, took effect on November 1, 2013. The Ordinance applies to positions that are based in Seattle at least half of the time. The Ordinance does not apply to governmental employers (with the exception of the City of Seattle) or to positions involving law enforcement, crime prevention, security, criminal justice, private investigation, or unsupervised access to children under the age of sixteen or to vulnerable or developmentally disabled adults.
Advertising Restrictions: Job advertisements may not exclude people with criminal records.
Job Application and Background Check Restrictions: Criminal history questions may not be part of a job application or asked in person and background checks cannot be conducted, until after an initial screening of applications to eliminate an unqualified applicant.
Hiring Restrictions: An employer cannot refuse to hire an applicant solely because he or she has an arrest record (as opposed to a conviction record) and cannot refuse to hire an applicant solely because of his or her conviction record, conduct underlying his or her arrest record, or pending criminal charges unless the employer has a legitimate business reason to do so.
Legitimate Business Reason: An employer cannot take tangible employment actions against a current employee (i.e.: termination, discipline, demotion, or denial of a promotion) based solely on the employee’s arrest record. Nor can an employer take tangible employment actions against a current employee based solely on that employee’s conviction record, conduct underlying his or her arrest record, or pending criminal charges unless the employer has a “legitimate business reason” for doing so.
A “legitimate business reason” means that the employer believes in good faith that the criminal conduct underlying the conviction either will have a negative impact on the person’s ability to perform the job, or will harm or cause injury to people, property, or business assets. As part of the determination an employer must consider the following factors:
- seriousness of the conviction
- number and types of convictions
- time elapsed since the conviction
- verifiable information related to the individual’s rehabilitation or good conduct, provided by the individual
- specific duties and responsibilities of the job; and
- where and how the job will be performed.
Notice to Applicant or Employee: After an employer reaches the determination that a legitimate business reason supports action on the basis of an applicant’s or employee’s criminal record, the employer is required to notify the individual of the specific records or information on which the decision is based and hold the position open for at least two business days in order to provide the individual with the opportunity to explain or correct that information.
Seattle employers should evaluate and revise their policies, application materials, and hiring practices to ensure compliance with the new Ordinance.
© 2013 Lisa Amato, Wyse Kadish LLP
DISCLAIMER This summary provides general information and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. If you have specific legal questions, please contact Lisa Amato at Wyse Kadish LLP, 503.228.8448, or firstname.lastname@example.org.
Lisa Amato advises clients in employment law, represents employers and management in employment litigation, and assists federal contractors with affirmative action and compliance.
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