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Office of Labor Standards (Revised 11/10/2016, 01/31/2018, 08/03/2020)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
Fair Chance Employment Ordinance
Questions and Answers
Seattle’s Fair Chance Employment Ordinance (formerly called the Job Assistance Ordinance) limits the ways
employers can use conviction and arrest records for hiring and employment decisions for employees working at
least 50% of their time in Seattle.
The Seattle Office of Labor Standards (OLS) is responsible for the administration of this ordinance, providing
outreach, compliance assistance and enforcement services to workers and employers
If you have a question that this Q&A does not cover, visit the Office of Labor Standards website. You may also
call 206-256-5297 or reach us electronically:
• Employees with questions and complaints – submit an online inquiry form.
• Employers with requests for technical assistance – send an email
to business.laborstandards@seattle.gov or submit an online inquiry form.
Note: Information provided by the Office of Labor Standards does not constitute legal advice, create an agency
decision, or establish an attorney-client relationship with the recipient of the information.
Table of Contents
A. General Information ............................................................................................................................................. 2
B. Employers ............................................................................................................................................................. 4
C. Job Applicants and Employees ............................................................................................................................. 5
D. Job Postings .......................................................................................................................................................... 9
E. Job Applications .................................................................................................................................................. 10
F. Using Conviction and Arrest Records in Employment Decisions ........................................................................ 10
G. Employer Requirements - Before Taking Adverse Action .................................................................................. 15
H. Types of Criminal Records .................................................................................................................................. 16
I. Employer Notice and Posting Requirements ....................................................................................................... 17
J. Prohibition on Retaliation ................................................................................................................................... 17
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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A. General Information
1. When did the Fair Chance Employment law take effect?
The law has been effective since November 1, 2013.
2. Where can I find a copy of the law and the rules that apply to this law?
The language of the law can be viewed by clicking here. To view the rules, visit the Office of Labor
Standards Fair Chance Employment Ordinance webpage and download a copy of the Seattle Human
Rights Rules (SHRR) Chapter 80.
3. Which City department administers this law?
The City of Seattle’s Office of Labor Standards (OLS) administers this law. OLS provides a range of
services for employees and employers including education and compliance assistance. OLS also
investigates potential violations of this law.
4. What does this law do?
The law regulates the use of criminal history in employment decisions.
• Prohibits categorical exclusions in job ads.
• Prohibits criminal history questions on job applications and criminal background checks until
after an employer conducts an initial screening to eliminate unqualified applicants.
• Requires an opportunity for the applicant or employee to explain or correct criminal history
information, and for the employer to hold the position open for at least two business days once
they have notified the applicant that the employer plans to take an adverse action.
• Requires a legitimate business reason to deny a job based on a conviction record.
5. Why is this law needed?
City Council passed the law for three reasons:
• This issue impacts us all. The incarceration rate of the United States has tripled since 1980 and is
seven times its historic average. An estimated one in every three adults in the United States has a
criminal record.
• Racial equity. Racial disparities in incarceration rates have resulted in devastating impacts on
communities of color. African Americans are 3.8% of Washington's population but account for
nearly 19% of the state's prison population. Native Americans are 1.8% of the state population but
account for 4.3% of the state's prison population. Racial disparities in incarceration rates mean that
blanket exclusions from employment based on criminal history have a disparate impact on
communities of color.
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• Public safety. Reducing adverse employment actions against people with criminal records will
support those individuals, strengthen communities, reduce recidivism and crime, reduce racial
disparities in the criminal justice system, lower the cost of criminal justice and save tax dollars.
6. Does having a job really help reduce the likelihood that someone will re-offend?
Yes. Employment is a key factor in reducing recidivism and improving public safety. For example:
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The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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• According to an Illinois study that followed 1,600 individuals recently released from state prison,
only 8% of those who were employed for a year committed another crime, compared to the
state’s 54% average recidivism rate.
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• In one study of former prisoners in Ohio, Texas and Illinois, researchers found that people who
were employed and earning higher wages after release were less likely to return to prison
during their first year of release.
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• The Justice Policy Institute compared state-level employment rates with crime rates and found
that on average, states with the highest levels of unemployment had higher violent crime rates
than states with lower unemployment levels. Increased employment and increased wages are
associated with lower crime rates.
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7. Where do employees call with questions? Can employees remain anonymous?
inquiry. Upon request, and to the extent permitted by law, OLS protects the identifying information
(e.g. name, job title) of employees who report violations and witnesses who provide information during
investigations. OLS will not disclose the person’s identifying information during or after the
investigation, to the extent permitted by law. OLS may need to release names of employees who are
owed payment as a result of an investigation.
8. What happens when employees call OLS?
Employees may call OLS with questions or complaints. When employees call OLS, they will be directed to
an intake investigator who will provide information about the law or gather information about issues at
the workplace. If employees wish to make a complaint, OLS may collect information from additional
witnesses and/or request documents from employees. After reviewing information provided by
employees, OLS will decide if and how it can help, which may take a variety of forms, including simply
providing information to the employer, trying to informally resolve the issue without a full investigation,
or conducting a formal investigation. If OLS decides to investigate, and if OLS cannot investigate the
employer immediately, it may place the case on a waitlist.
9. Does an employee’s immigration status impact coverage or application of the law?
No, immigration status does not impact coverage or application of the law. As a matter of policy, the
City of Seattle does not ask about the immigration status of anyone using City services. Read OLS’
Commitment to Immigrant and Refugee Communities for more information.
10. Can employers call OLS with their questions?
Yes! OLS provides compliance assistance and training for employers. Employers can call 206-256-5297,
share information about the identity of employers with our enforcement team. Phone conversations
and email conversations are kept separate from the investigation process.
11. What happens when an employer calls OLS with a question?
OLS encourages employers to call or email their questions to our office. Our goal is to help employers
attain full compliance with Seattle’s labor standards and we will answer many types of labor standards
questions. OLS has staff dedicated to business engagement who respond to inquiries and who are not
members of the enforcement team. Phone conversations and email exchanges with the business
engagement staff are kept separate from the investigation process.
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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12. Does OLS provide language interpretation for its services?
Yes. If OLS staff do not speak your preferred language, OLS will arrange for an interpreter to help with
the conversation. OLS’s services are free of charge regardless of whether interpretation services are
required.
13. Are there other laws like this in Washington State?
Yes. Since 1973, the State of Washington and its counties, cities, towns, municipal corporations, or
quasi-municipal corporations must comply with state law (e.g. Revised Code of Washington (RCW)
9.96A) regarding employment of people with prior arrest conviction records. The law says that a person
cannot be denied a job solely based on a felony conviction. A person may be denied a job if the
conviction directly relates to the job and if less than ten years have passed since the conviction.
Building on its 1973 law, Washington State passed the Washington State Fair Chance Act, RCW chapter
49.94, a law that protects job applicants with criminal records by allowing them to compete for job
opportunities across the State. Like Seattle’s ordinance, this law prohibits advertisements that
categorically exclude job applicants with criminal records, questions about an applicant’s criminal history
on applications, and criminal history searches/checks prior to a determination that the applicant is
otherwise qualified for the job. For more information about the State law, please visit the Washington
State Attorney General’s Civil Rights Unit’s page.
14. Does this law impact existing state and federal laws relating to criminal records?
No. Employers must still follow state and federal law. In the event of a conflict, state and federal
requirements supersede the requirements of the Seattle law. However, where there is no conflict and
the Seattle law adds more protections than state and federal requirements, the Seattle law takes
precedence and employers must follow those additional requirements.
Some of the relevant state and federal laws include Title VII of the Civil Rights Act of 1964; the federal Fair
Credit Reporting Act, 15 U.S.C. 1681; the Washington State Fair Credit Reporting Act, RCW 19.182; the
Washington State Criminal Records Privacy Act, RCW 10.97; Washington State Fair Chance Act, RCW
49.94; and state laws regarding criminal background checks, including those related to individuals with
access to children or vulnerable persons, RCW 43.43.830, et seq.
B. Employers
1. Does the law apply to all employers?
The law applies to employers with one or more employees working inside Seattle city limits. The law
also applies to job placement, referral and employment agencies that place individuals in jobs within
Seattle city limits.
The law does not apply to the U.S. government; the State of Washington, including the legislature and
the judiciary; or any county or local government other than the City of Seattle. However, the State of
Washington and its counties, cities, towns, municipal corporations, or quasi-municipal corporations
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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must comply with state law (RCW 9.96A) with regard to employment of people with prior arrest or
conviction records and the Washington State Fair Chance Act (RCW 49.94).
2. Does the ordinance apply to companies that are headquartered or located outside of the City of
Seattle?
Yes. The law applies to employee positions within Seattle, regardless of the location of the employer,
corporation, or headquarters. The employer must adhere to the law for employee positions that
perform a substantial part (at least 50% of the time) of their employment services in Seattle.
C. Job Applicants and Employees
1. Does the law apply to all applicants and employees?
The law applies to job applicants, candidates and employees who work within Seattle City limits.
“Employee” includes any individual who performs any services for an employer, when the physical
location of such services is in whole or in substantial part (at least 50% of the time) within Seattle. See
questions C. 4-812 through 16 for more details.
2. Does the law apply to volunteers?
No.
3. Are independent contractors considered employees, and does the law apply to them?
No. This law only applies to employees. Whether an individual is an employee or independent
contractor is determined by the “Economic Realities Test” that is used by the Fair Labor Standards Act
and the Washington State Minimum Wage Act.
If there is a dispute regarding a worker’s status, the employer is responsible for proving that the worker
is an independent contractor rather than an employee (i.e., the law favors employee status and an
employer must prove otherwise). Under the Economic Realities test, factors for distinguishing an
employee from an independent contractor include:
• Is the work an integral part of the employer’s business?
• Does the worker’s managerial skill affect the worker’s opportunity for profit or loss?
• How does the worker’s relative investment compare to the employer’s investment?
• Does the work performed require special skill and initiative?
• Is the relationship between the worker and the employer permanent or indefinite?
• What degree of control does the employer exercise or retain?
For more information, see our Worker Classification Fact Sheet (Guide).
4. Does the law apply to employees who work from multiple locations inside and outside of Seattle?
The law may apply depending on the circumstances. The law applies to employees who work in Seattle
at least 50% of the time. For example:
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The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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Example #1: An employer’s business is located in Portland, OR. One of the positions is required to
work in Seattle three of every four weeks throughout the year. The employee returns to
Portland for the fourth week of each month throughout the year. The law applies to this
position because the employee works in Seattle 75% of the time.
Example #2: A Seattle-based business employs one full-time position in Bellevue, WA, for four of the
five work days each week. The ordinance does not apply to this position because the
employee works outside of Seattle 80% of the time. The law does apply to this
employer’s other employees who work in Seattle at least 50% of the time.
Example #3: A transport company employs drivers who make deliveries throughout the region,
including Seattle. The drivers work 40 hours/week.
• One full-time driver’s position follows a regular route that includes 20
hours/week within Seattle. The law applies to this employee because he works
in Seattle 50% of the time.
• Another full-time driver’s position follows a regular route that includes only one
day a week in Seattle. The law does not apply to this employee because she
works in Seattle less than 50% of the time.
• A third full-time driver’s position follows an irregular route that moves in and
out of Seattle with no set schedule. The law may or may not apply to this
employee. The employer will need to make a good-faith estimate of the
percentage of time this position works in Seattle to determine if the law applies.
5. Does the law apply to individuals who work from their homes or another location in Seattle
(telecommuting)?
The law may apply depending on the circumstances. Employees who work 50% or more of their time by
telecommuting from a location within the City of Seattle are covered by the law. For example:
Example #1: An employee works for a business based in Everett, WA. The employee
telecommutes from her home in Seattle on two days a week throughout the year. She works in
Everett on the other three days of the week. The law does not apply to this employee because
she works outside Seattle for 60% of the time.
Example #2: An employee works for a business based in Tacoma, WA. The employee
telecommutes from his home in Seattle three days a week throughout the year. He works in
Tacoma the other two days of the week. The law applies to this employee because he works in
Seattle for 60% of the time.
Example #3: A Seattle-based tour company employs tour guides for three months each year.
The guides work half of the time in Seattle during those three months. The law applies to these
employees because they work in Seattle 50% of the time.
6. Does the law apply to employees who are temporary workers?
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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The law may apply depending on the circumstances. For example, a Seattle-based outdoor display
company employs several positions for 6-month contracts.
• One position is contracted to work two months in Seattle and four months in Olympia, WA. The
Ordinance does not apply to this position because the employee will work in Seattle only 33% of
the time.
• Another position is contracted to work two months in Olympia and four months in Seattle. The
law applies to this position because the employee will work in Seattle 67% of the time.
7. Does the law apply to employees who travel through (but do not stop in) Seattle for business?
The law likely does not apply to employees who travel through Seattle. For example, an employee splits
her work time between Kent, WA, and Shoreline, WA. She stops in Seattle for gas en route to her two
work sites. This employee is not covered by the law, since her time in Seattle is incidental to her work.
8. How does an employer or employee determine “a reasonable expectation” that 50% or more of the
employee’s work will be in Seattle?
An employee or employer may look to past years to determine whether the employee should
reasonably expect the employee to work 50% of the time in Seattle. If the position or employer is new,
the person may evaluate the job description and expected work of the individual, including the location
of the work, to determine if it is reasonable to expect employees to work 50% of their time in Seattle.
9. Are there some jobs or positions that are not subject to the law?
Yes. The law does not apply to individuals whose job duties or prospective job duties include:
• Law enforcement;
• Policing;
• Crime prevention;
• Security;
• Criminal justice;
• Private investigation services.
Additionally, the law does not apply to individuals who will or may have unsupervised access to the
following individuals during the course of their employment:
• Children under sixteen years of age;
• Individuals with developmental disabilities; or
• Vulnerable adults.
Example #1 – unsupervised access: A summer camp is hiring for two positions:
• One opening seeks a counselor who will be responsible for 7 young adults with
developmental disabilities, including their sleeping arrangements. In this scenario, it is likely
that the counselor will have unsupervised access to individuals with developmental
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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disabilities. The law does not apply to this position, since it includes unsupervised access to
individuals with developmental disabilities.
• The other opening seeks a general maintenance worker to make repairs to the facilities as
needed throughout the summer. The law applies to this position, since it does not include
unsupervised access to developmentally disabled individuals.
Example #2 – unsupervised access: A non-profit organization provides mental health services to
children younger than 16 and vulnerable adults. The organization is hiring for two positions.
• One opening seeks a mental health therapist who will conduct one-to-one counseling
sessions. The Ordinance does not apply to this position because the person in this position
will have unsupervised access to children younger than 16 and vulnerable adults.
• The other opening seeks a front lobby receptionist whose job duties do not include
unsupervised access to children younger than 16 and vulnerable adults. The law applies to
this position, because this position will not have unsupervised access to children under age
16 or vulnerable adults.
10. When an employer uses a third-party recruiting firm, who is responsible for a violation – the firm or
the employer?
Both the employer and the third-party recruiting firm must comply with the law, and both may be
responsible for a potential violation. To determine parties’ responsibility in specific situations, OLS
would review the actions and decisions of the firm and employer, as well as any agreement between the
two entities.
11. Does the law apply to employment decisions of employers who are legally required to obtain a bond
for their business?
Yes. Employers facing mandatory bonding requirements (under state and federal law or administrative
regulation) must follow all aspects of the law for hiring and employment decisions, including an
individualized assessment of an applicant or employee’s criminal record, evaluation of the potential
impact of the criminal record on bondability and consideration of all legitimate business reason factors.
However, if there is a direct conflict between the law and the mandatory bonding requirements, then
the state and federal laws or administrative regulations supersede law requirements.
12. Does the law apply to employment decisions of employers who wish to obtain a non-mandatory bond
for their business?
Yes. Employers who wish to secure non-mandatory bonds for their business must follow all of the law’s
requirements for hiring and employment decisions, including an individualized assessment of an
applicant or employee's criminal record, evaluation of the potential impact of the criminal record on
bondability and consideration of all legitimate business reason factors.
Example: A fidelity bond is a form of insurance that protects businesses from losses incurred by the
dishonest acts of employees. Employers who wish to secure a fidelity bond must consider each
applicant's criminal record on a case-by-case basis. If a criminal record will negatively impact
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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bonding, an employer may consider this outcome during their analysis of the legitimate business
reason factors. Employers also should consider options to mitigate the impact of criminal records
such as temporary fidelity bonds provided at no charge by the Federal Bonding Program. More
information about this free program is available from the Washington Employment Security
Department (https://esd.wa.gov/about-employees/federal-bonding).
D. Job Postings
1. What are the law’s requirements about job postings?
Job postings for work to be performed within Seattle cannot automatically or categorically exclude
individuals with any arrest or conviction record. Examples of statements that convey categorical
exclusions include but are not limited to:
a. “No felons need apply”
b. “No criminal background”
c. “Clean Criminal Record.”
d. “Must have clean driving record”
Because of the chilling effect on job applicants with criminal history, employers should not use language
such as “applicants must successfully pass background check”. If an employer uses such language, it is
best practice to assure applicants that the background check will be conducted in accordance with
Seattle’s Fair Chance Employment Ordinance, SMC 14.17, as follows:
“Applicants must successfully pass a background check, which will be conducted in accordance with
Seattle’s Fair Chance Employment Ordinance, SMC 14.17. Applicants will be given a chance to explain or
correct background information and provide verifiable information of good conduct and rehabilitation.”
2. Can an employer tell an applicant that a background check will need to be completed during the hiring
process?
Yes. An employer can inform applicants and employees that it will conduct a criminal background check.
However, employers are encouraged to adopt the following practices when informing individuals that
they will conduct background checks:
a. Wait to inform applicants that a background check will be conducted until after applicants have
been initially screened for minimum qualifications;
b. Include information on advertisements and applications that mention the rights of applicants under
the law – for example:
“Hiring process involves a background check of conviction and arrest records. The hiring process will
be conducted in compliance with Seattle’s Fair Chance Employment Ordinance, SMC 14.17.
Applicants will be provided an opportunity to explain and correct background information.”
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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E. Job Applications
1. Can an employer ask about conviction and arrest records on a job application?
No. An employer may only ask about conviction and arrest records after an initial screening of
applicants’ qualifications to eliminate unqualified candidates. In most instances, this means that an
employer may only ask about conviction and arrest records after it has reviewed a candidate’s
application. However, if an employer performs an initial screening of applicants to eliminate unqualified
candidates before providing candidates with an application, the application may contain questions about
conviction and arrest records.
2. Can an employer conduct a criminal background check on a job applicant?
Yes, but only after the employer has completed an initial screening of applications to eliminate
unqualified applicants.
3. What is a criminal background check?
The law defines a criminal background check as “requesting or attempting to obtain, directly or through
an agent, an individual’s conviction record or criminal history record from the Washington State Patrol
or any other source that compiles and maintains such records or information.
4. What is an initial screening?
An initial screening is a review of an applicant’s qualifications to ensure that the applicant possesses the
minimum qualifications that are necessary for the job. Depending on the employer’s hiring process, an
initial screening may be a first review of written applications for minimum qualifications or a verbal
conversation with an applicant about their education or work experience.
5. Does the ordinance limit how far back an employer can look into an applicant’s history?
No. However, the employer must consider the length of time that has passed since the conviction,
conduct, or charge. See Question F. 6 below for examples of reasonable timeframes and studies. Under
Washington state law, consideration of arrest or conviction records older than 10 years may constitute
an unfair practice under the Washington Law Against Discrimination. See Washington Administrative
Code 162-12-140(3)(b) and (d) and Revised Code of Washington (RCW) 49.60.180 and 200.
F. Using Conviction and Arrest Records in Employment
Decisions
1. What is an arrest record?
An arrest record is information that a person has been detained, taken into custody, or otherwise
restrained by a law enforcement agency or military authority due to an accusation or suspicion that the
person committed a crime.
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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2. Can a person be denied employment, disciplined, fired, or demoted because of an arrest record?
No. The law prohibits employers from rejecting an otherwise qualified job applicant, or taking an
adverse employment action (for example, discharging, suspending, disciplining, demoting, or denying a
promotion) solely on the basis of an arrest record.
3. Can a person be denied employment, disciplined, fired, or demoted based on conduct related to an
arrest?
Yes. An employer may reject a job applicant or take an adverse employment action (for example,
discharging, suspending, disciplining, demoting, or denying a promotion) based on conduct related to an
arrest provided there is a legitimate business reason. The legitimate business reason analysis is
discussed in Question F. 7.
4. What sources of information can an employer rely upon to determine conduct related to an arrest
record?
Employers may rely upon information from sources such as: (1) self-disclosure by the employee or
applicant; (2) an official government record, such as a police report, probable cause statement, or other
court record; or (3) a publicly available media report.
5. Can a person be denied employment, disciplined, fired, or demoted based on pending criminal
charges?
Yes. An employer may reject a job applicant or take an adverse employment action (for example,
discharging, suspending, disciplining, demoting, or denying a promotion) based on pending criminal
charges provided there is a legitimate business reason. The legitimate business reason analysis is
discussed in Question F. 7.
6. Where can an employer learn about pending criminal charges?
Employers may consult criminal history record information furnished by a credit reporting agency or
government records, such as official court or law enforcement records.
7. What is a legitimate business reason for rejecting an applicant or taking an adverse action against an
employee due to criminal history, pending criminal charges, or conduct related to an arrest?
The law requires that employers consider certain factors to determine whether there is a legitimate
business reason for rejecting an applicant or taking an adverse action against an employee due to
criminal history, pending criminal charges, or conduct related to an arrest. A legitimate business reason
exists if the employer, after considering the following factors, believes in good faith that the criminal
conduct underlying a conviction or charge will either:
a. Have a negative impact on the employee’s or applicant’s fitness or ability to perform the
position sought or held, or
b. Harm or cause injury to people, property, or business assets.
The factors that the employer must consider are:
• The seriousness of the underlying criminal conviction or pending criminal charge;
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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• The number and types of convictions or pending criminal charges;
• The time that has elapsed since the conviction or pending criminal charge, excluding periods of
incarceration;
• Any verifiable information provided by the individual related to his/her rehabilitation or good
conduct;
• The specific duties and responsibilities of the position sought or held;
• The place and manner in which the position will be performed.
8. How does an employer show that a legitimate business reason exists?
It depends on the specific facts and circumstances. In an investigation, OLS’s assessment would be based
on the totality of circumstances for the specific case. An employer should document all actions taken
and why they were taken. Employers should retain all documents related to the hiring process, including
notes from interviews, job description, applications and information provided by applicants.
9. How do employers demonstrate that a good faith belief exists?
Employers must provide sufficient evidence to show that they considered the factors listed in the
definition of a legitimate business reason (see Question F. 7 above). Employers can provide
documentation of the decision process, including the records on which they relied and other relevant
information, such as the job description or verifiable information provided by the applicant or
employee. It is a good idea to document the decision-making processes and the steps taken to comply
with the law.
10. How do employers decide how much weight to place on verifiable information provided by an
applicant or employee?
Employers must demonstrate that they have considered any verifiable information provided by the
applicant or employee that relates to the individual’s rehabilitation or good conduct. This includes the
applicant’s or employee’s own statement explaining the record or action. Employers should be able to
explain how and why they put weight on any given piece of verifiable information and document their
decisions.
11. Why does an employer need to consider the “time elapsed” since criminal conduct?
Studies show that the amount of time elapsed since the criminal conduct can impact the likelihood of an
individual re-offending in the future. Therefore, the “time elapsed” factor is relevant to whether a
legitimate business reason exists to exclude an applicant or take an adverse action against an employee.
Here are some examples. Please note that in all instances, the employer also must consider the other
factors listed in question F.7 above.
Example #1 – misdemeanor 15 years ago: Jackson, a 35-year-old man, is applying for a job at an
architectural firm. Fifteen years ago, Jackson was convicted of malicious mischief (a gross
misdemeanor) for tagging the outside of grocery store. Jackson did not spend any time in jail but
was on probation for a period of time. Jackson has not engaged in any other criminal conduct since
then.
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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Analysis: Due to the long time since the conviction, the “time elapsed” factor would not strongly
support the employer’s claim of a legitimate business reason to exclude Jackson from consideration.
Example #2 – misdemeanor six months ago: Devon, a 25-year-old woman, is applying for an
assistant property manager position. Six months ago, Devon was convicted of three counts of
prostitution. Devon’s sentence requires rehabilitation classes and completion of community service
hours. Devon is currently on active probation.
Analysis: Because the time elapsed since the conduct is short, the “time elapsed” factor may
support a legitimate business reason.
Example #3 – felony conviction two years ago: Jayden, a 40-year-old man, applied for a clerk’s job
at a grocery store. Two years ago, Jayden was released from jail after serving a three-year sentence
for felony assault. Six years ago, he was charged with urinating in public and possessing an open
bottle of alcohol in a public park. Jayden committed three other assaults more than ten years ago.
He has not had any subsequent run-ins with the criminal justice system.
Analysis: The law allows the employer to consider the time elapsed since conviction, excluding
periods of incarceration. In this example, Jayden served three years in prison for the most recent
conviction and has been out for two years. The “time elapsed” since the last conviction factor may
support a legitimate business reason. However, it may not support a legitimate business reason for
the ten-year-old assaults or the six-year-old municipal offenses.
12. Does an employer need to consider an applicant who lied about conviction or arrest records?
If an employer receives information from an applicant or employee that is inconsistent with the
information the employer receives in a criminal history report, the employer must still give the applicant
or employee an opportunity to correct errors by following the legitimate business reason analysis,
before taking any adverse action.
The employer does not need to follow this process if the applicant or employee intentionally
misrepresents this information. To ensure compliance, an employer should allow the applicant or
employee an opportunity to correct this information. Background checks are not always accurate and
may contain misleading information, mischaracterize the seriousness of offense or disposition of the
offense, mismatch identities, or include sealed information.
v
13. Why must an employer consider a certificate of rehabilitation as part of the verifiable information
process?
An employer must consider a certificate of rehabilitation because, even after a person receives a
certificate of rehabilitation for a conviction, the conviction may still appear on the person’s criminal
history report. The employee or applicant has a right to respond to, correct or explain the information
that the employer receives on the criminal history report.
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
14
For example, Jane was convicted of assault. After serving her sentence and living in the community
without committing crimes for a period of time, Jane received a certificate of rehabilitation for the
assault conviction. When Jane applied for a job with R Company, the assault conviction appeared on
Jane’s criminal history report. R Company must give Jane an opportunity to respond to the information,
explain it, and correct it, which includes permitting Jane to provide a certificate of rehabilitation and any
other verifiable information. Please see Seattle Human Rights Rule 80-120.
14. What studies provide guidance on the likelihood of re-offense over time?
The following studies examine the likelihood of re-offense over time:
• Alfred Blumstein and Kiminori Nakamura, Redemption in the Presence of Widespread Criminal
Background Checks, 47 CRIMINOLOGY 327 (2009). The study concluded that there may be a “point
of redemption” for individuals arrested for certain offenses (i.e., a point in time where an
individual’s risk of re-offending or re-arrest is comparable to individuals with no prior criminal
record) if they remain crime-free for a certain number of years.
• Megan C. Kurlychek, Robert Brame & Shawn D. Bushway, Enduring Risk? Old Criminal Records
and Predictions of Future Criminal Involvement, 53 CRIME & DELINQUENCY 64 (2007). The study
analyzed juvenile police contacts for an aggregate of crimes for 670 males born in 1942 and
concluded that the risk of a new offense approximates that of a person without a criminal
record after seven years.
• Megan C. Kurlychek, et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict
Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483 (2006). The study evaluated juvenile police
contacts and arrest dates from Philadelphia police records for an aggregate of crimes for
individuals born in 1958. It concluded that the risk of recidivism decreases over time, and that
six or seven years after an arrest, an individual’s risk of re-arrest approximates that of an
individual who has never been arrested.
• Keith Soothill & Brian Francis, When do Ex-Offenders Become Like Non-Offenders?, 48 HOWARD J.
OF CRIM. JUST., 373, 380-81 (2009). The study examined conviction data from Britain and Wales. It
found that the risk of recidivism declined for groups with prior records and eventually
converged within 10 to 15 years with the risk of those of the non-offending comparison groups.
15. What do studies say about how the age of a person at the time of the offense impacts the likelihood
of recidivism?
The following studies examine how the age of the person at the time of offense may impact the
likelihood of re-offense:
• Shawn Bushway et al., The Predictive Value of Criminal Background Checks: Do Age and Criminal
History Affect Time to Redemption?, 49 CRIMINOLOGY 27, 52 (2011). The study found that
recidivism rates tend to decline as ex-offenders’ ages increase, and that an individual’s age at
conviction is a variable that has a “substantial and significant impact on recidivism.” For
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
15
example, the 26-year-olds in the study, with no prior criminal convictions, had a 19.6% chance of
reoffending in their first year after their first conviction, compared to the 36-year-olds who had
an 8.8% chance of reoffending during the same time period, and the 46-year-olds who had a
5.3% chance of reoffending.
• Patrick A. Langan & David J. Levin, Bureau of Justice Statistics, U.S. Dep’t of Justice, Special
Report: Recidivism of Prisoners Released in 1994 (2002). The study found that, although 55.7% of
ex-offenders aged 14 to 17 released in 1994 were reconvicted within three years, the
percentage declined to 29.7% for ex-offenders aged 45 and older who were released the same
year.
When considering the age of the person at the time of offense and making employment decisions, OLS
cautions employers to be mindful of age discrimination laws.
16. What do studies say about the employability of adolescents with convictions?
The following study discusses the employability of individuals who had convictions as adolescents.
• Brent W. Roberts et al., Predicting the Counterproductive Employee in a Child-to-Adult
Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1430 (2007). The study found that among New
Zealand residents from birth to age 26, “[a]dolescent criminal convictions were unrelated to
committing counterproductive activities at work [such as tardiness, absenteeism, disciplinary
problems, etc.]. According to the results of the study, people with an adolescent criminal
conviction record were less likely to get in a fight with their supervisor or steal things from work.
G. Employer Requirements - Before Taking Adverse Action
1. Do employers need to give the applicant /employee a chance to explain or correct information about
their criminal history?
Yes. Before taking an adverse action based on the conduct relating to an arrest, a conviction or a
pending criminal charge, the employer shall let the applicant / employee know the information they are
relying on and give the person a reasonable opportunity to explain or correct that information.
2. How much can an employer follow up with the sources of “verifiable information,” such as a social
worker, parole officer, health care provider, etc. that an applicant or employee provides?
The law requires employers to consider any verifiable information provided by the applicant/employee.
Employers should consult with legal counsel, human resources or conduct research to determine
whether following up with certain professionals would be a violation of other city, state or federal laws.
3. Can an employer ask an applicant for medical information that would otherwise be protected by
HIPPA or other laws?
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
16
HIPPA (the Health Insurance Portability and Accountability Act of 1996) prevents covered entities such
as healthcare providers from disclosing private information about medical history. An
applicant/employee would need to give permission to their healthcare provider to have them provide
medical information to an employer.
Employers should consult with legal counsel, human resources, or conduct research to determine if
asking an applicant for this information would violate other city, state, or federal laws, like the
Americans with Disabilities Act and Genetic Information Nondiscrimination Act.
4. Are there requirements for how an employer notifies an employee of a possible adverse action (e.g.
failure to hire, termination) based on criminal history information?
The law does not specify methods of notification. It does indicate that the employer must inform the
individual in the manner most likely to reach the applicant or employee in the shortest amount of time.
It is a good idea to use the method of communication that will reach the applicant or employee most
quickly, depending on the circumstances. This could include email, telephone, U.S. Postal Service, or in-
person communication. The employer should inform the applicant or employee of the information and
records and provide the applicant or employee an opportunity to review the information and records.
5. Does an employer need to hold the position open while the applicant or employee explains the
information or corrects wrong information?
Yes. Employers must hold open the position for a minimum of two business days after notifying the
applicant / employee that they will be making an adverse business decision solely on the basis of
conduct relating to an arrest, a conviction or a pending criminal charge, and provide a reasonable
opportunity for the person to respond, correct or explain that information. After two business days,
employers may hold open a position until questions about an applicant’s criminal conviction history or a
pending charge are resolved. However, employers are not required to do so beyond the two days.
6. If the employer decides not to hire the applicant for a reason other than the applicant’s criminal
history, does the employer need to perform a legitimate business reason analysis?
No. The law requires that an employer perform a legitimate business reason analysis if the employer is
making the decision solely based on the applicant’s criminal history. However, if the employer makes its
hiring decision based in part on the applicant’s criminal history, it is a good idea to analyze and
document that decision.
H. Types of Criminal Records
1. Does an applicant need to report a sealed or expunged record if the employer requests criminal
history information?
Seattle’s Fair Chance Employment Ordinance does not address conviction records that have been the
subject of an expungement, vacation of conviction, sealing of the court file, pardon, annulment or other
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
17
equivalent procedure. Washington State laws do address vacated and sealed records and what an
employee needs to report. For more information on the laws addressing vacated or sealed records visit
the American Civil Liberties Union Second Chances Program website.
2. What about the conduct that led to an arrest that was later sealed or expunged? Can an employer ask
about that?
Yes. If an employer wants to consider the conduct related to any arrest, the employer must follow the
process outlined in the law. The employer may not consider the conduct related to the arrest until after
the initial screening.
3. Does the law apply to juvenile records?
Yes, the law applies to juvenile records.
I. Employer Notice and Posting Requirements
1. What are the notice and posting requirements of the FCE ordinance?
Employers must display a 11” x 17” workplace poster, updated annually, in a conspicuous and accessible
location where any of their employees work. Employers must display the poster in English and in the
primary language(s) of the employees at the particular workplace. OLS is responsible for creating the
poster, providing annual updates by December 1
st
of each year, and translating it into different
languages.
2. How do employers comply with the workplace poster requirement if employees telecommute or work
off-site with no central work location?
If display of the poster is not feasible, including situations when the employee works remotely or does
not have a regular workplace, employers may provide the poster on an individual basis in an employee’s
primary language in a physical or electronic format that is reasonably conspicuous and accessible.
3. How do employers comply with the workplace poster requirement for out-of-town employees who
work in Seattle on an occasional basis?
For employees who work in Seattle on an occasional basis, employers must comply with the workplace
poster requirements reasonably in advance of their first period of work in Seattle.
4. Where can employers get the workplace poster?
The workplace poster is available electronically on the Office of Labor Standards website. The poster
also is available in our downtown office (810 Third Avenue, Suite 375).
J. Prohibition on Retaliation
1. Does the ordinance prohibit retaliation?
Office of Labor Standards (Revised 01/31/2018, 08/03/2020, 03/01/2021)
The information in this document is not intended as legal advice and should not be used as a substitue for laws and
regulations.
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Yes. Retaliation is illegal. Employers are prohibited from taking an adverse action or discriminating
against employees who assert, in good faith, rights protected by this law. These rights include (but are
not limited to):
a. Informing an employer, union or legal counsel about alleged FCE violations;
b. Filing a complaint about alleged FCE violations;
c. Participating in an investigation of alleged FCE violations;
d. Informing other employees of their FCE rights.
i
For more information, please see Washington State Department of Corrections website at:
http://www.doc.wa.gov/information/data/analytics.htm and the Department’s Racial Disparity Executive Summary.
ii
American Correctional Association, 135th Congress of Correction, Presentation by Dr. Art Lurigio (Loyola University) Safer
Foundation Recidivism Study (Aug. 8, 2005).
iii
Christy Visher, Sara Debus & Jennifer Yahner, Employment after Prison: A Longitudinal Study of Releasees in Three
States, Justice Policy Center Research Brief (Oct. 2008), available at
http://www.urban.org/UploadedPDF/411778_employment_after_prison.pdf
iv
Aliya Maseelall, Amanda Petteruti, Nastassia Walsh & Jason Ziedenberg, Employment, Wages and Public Safety, Justice
Policy Institute (Nov. 2007) at 2-4, available at
http://www.justicepolicy.org/images/upload/07_10_REP_EmploymentAndPublicSafety_AC.pdf.
v
Broken Records: How Errors by Criminal Background Checking Companies Harm Workers and Businesses. April, 2012.
National Consumer Law Center
