Washington State Employers Face Major Changes to Background Checks

00:00

24:53

Quick Hits

• As of July 1, 2026, employers in Washington State with fifteen or more employees anywhere that inquire about or consider criminal history in employment decisions have significant new requirements under the Washington Fair Chance Act.
• The law applies to all sources of criminal history information.
• The amended law expands protections to current employees.
• The amendments also expand employer obligations to notify employees of their rights.

The WFCA amendments also expand employer obligations to notify employees of their rights.

Key Elements and Exemptions

The WFCA continues to prohibit covered Washington employers from maintaining a policy or practice that automatically excludes applicants with a criminal record. It also retains the prohibition against job advertisements that exclude people with criminal records from applying. For example, statements in job postings like “no felons” or “no criminal background” remain illegal. Both the original law, enacted in 2018, and the amendment apply to all criminal history, regardless of whether it was obtained from a consumer reporting agency (CRA) or another source.

The WFCA does not apply to employers that:

• hire individuals who will or may have unsupervised access to children under the age of eighteen or other vulnerable individuals, as defined by applicable law;
• are expressly permitted or required under federal or state law to inquire into, consider, or rely on criminal records for employment purposes;
• are law-enforcement agencies and criminal-justice agencies as defined under Washington law;
• are seeking nonemployee volunteers;
• are required to comply with the rules or regulations of a self-regulatory organization under Section 3(a)(26) of the Securities Exchange Act of 1934; or
• are hiring for positions under a federal contract that specifically prohibits those with criminal records from working under that contract.

Timing Restrictions

The prior law prohibited an employer from seeking any information, orally or in writing, about an applicant’s criminal record only until the employer determined that the person is otherwise qualified for the job.

The amended WFCA shifts the timing of when covered employers may act. An employer may not inquire about or obtain criminal history information, whether on an application or directly from the individual, or reject an applicant for failing to disclose criminal history, until it has determined that the person is otherwise qualified and extended a conditional offer of employment.

Early Rights Notice

If an applicant voluntarily discloses information about criminal history during an interview, or if an employer discloses to an applicant that the position will be subject to a background check following a conditional offer, the employer must immediately provide a written disclosure of certain rights under the law. The attorney general has not yet released a model form that satisfies this requirement. In addition to this disclosure, employers must provide the attorney general’s updated “Washington Fair Chance Act Guide for Employers and Job Applicants.” This is a relatively unique aspect of the new law.

Newly Prohibited Inquiries and Considerations

The amendments also narrow the criminal history employers may seek or consider. Under the amended WFCA, employers may not, regardless of timing, consider or take a tangible adverse employment action based on an arrest record—unless an adult is out on bail or released pending a trial—or a juvenile conviction record.

Further, the WFCA now expressly applies to all tangible adverse employment actions, newly defined as “a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee.” As the law was previously directed at hiring decisions, this is a considerable expansion of its protections.

Adverse Action Process

The amended WFCA introduces a formal two-step process for taking adverse actions based on criminal history, including new notice and assessment requirements.

Pre-Adverse Action: Legitimate Business Reason Analysis Required

First, before deciding to take any adverse action, employers must analyze whether a legitimate business reason supports an adverse employment decision. A legitimate business reason exists when, based on all available information, the employer has a good faith belief that the nature of the criminal conduct will (a) negatively impact the individual’s fitness or ability to perform the job (the fitness prong), or (b) will cause harm to people, property, business reputation, or business assets (the harm prong). The attorney general’s office has confirmed that both prongs of this assessment require the employer to consider and document the following criminal evaluation factors:

1. the seriousness of the conduct underlying the conviction;
2. the number and type of convictions;
3. the time elapsed since the conviction, excluding periods of incarceration;
4. any verifiable information relating to the individual’s rehabilitation, good conduct, work experience, education, and training;
5. the specific duties and responsibilities of the position; and
6. the place and manner in which the position will be performed. 

Pre-Adverse Action: Letter and Waiting Period

Before taking a tangible adverse employment action based on criminal history, employers must provide the applicant or employee with written notice of the preliminary decision and identify the record(s) on which it is based. The employer must then wait at least two business days before finalizing any decision, giving the individual an opportunity to correct or explain the record or provide information regarding rehabilitation, good conduct, work experience, education, and training. Note that if the information was obtained from a CRA, employers must comply with the longer federal Fair Credit Reporting Act waiting period, generally five business days.

Adverse Action Letter

The post-decision notice is perhaps the most significant change introduced by the new law and is another relatively unique requirement. After the waiting period, the employer must reassess its preliminary decision using the criminal evaluation factors and all available information, including any response received from the individual. If the employer determines that adverse action remains warranted, the employer must prepare a written decision that includes specific documentation of its:

• reasoning and assessment of each criminal evaluation factor, including the impact of the conviction on the position or business operations; and
• consideration of the individual’s rehabilitation, good conduct, work experience, education, and training.

Stricter Enforcement

The attorney general retains investigation and enforcement authority. The amendments eliminate the prior requirement that the attorney general take a progressive approach before pursuing enforcement action. Education and warning steps, previously mandatory, are now discretionary. Penalties range from $1,500 for a first violation to $15,000 for third and subsequent violations per complainant, payable to the complainant or, if none is identifiable, to the attorney general. Following a first violation, the attorney general may also pursue legal action seeking unpaid wages, unpaid penalties, damages, and attorneys’ fees. The amendments do not create a private right of action.

Employers must also comply with the Washington Fair Credit Reporting Act (WFCRA) when obtaining information from a CRA. The WFCRA requires an employer to provide the individual with a written summary of rights under that law, the name, address, and telephone number of the CRA, and a reasonable opportunity to dispute or respond to the report. These requirements are in addition to those imposed by the federal Fair Credit Reporting Act (FCRA). If the employer proceeds to final adverse action, only federal FCRA requirements apply under the old law, as Washington did not previously impose state-specific pre-adverse or adverse action requirements unique to criminal history information.

Seattle employers: Seattle employers have been required to comply with the Seattle Fair Chance Employment Ordinance since 2013. The WFCA now closely tracks the Seattle ordinance, but there are potentially significant differences. For example, Seattle still allows employers to seek criminal history information before a conditional job offer, Washington’s exemptions are a bit broader than Seattle’s, and Washington has not passed regulations or published guidance such as the Questions and Answers Seattle has published. Although Washington’s law is generally more protective of applicants and employees, the Seattle Office of Labor Standards has confirmed it will continue to investigate complaints and enforce its Fair Chance Employment Ordinance. The Washington attorney general’s office has declined to publish further guidance—other than what is already available on its web page—or take a position on preemption at this time. Accordingly, covered employers with Seattle positions must comply with both state and local laws.

Ogletree Deakins’ Seattle office and Background Checks Practice Group will continue to monitor developments and will post updates on the Background Checks and Washington blogs as additional information becomes available.

Washington and Seattle Notice of Fair Chance Requirements, pre-adverse action letters, adverse action letters, and law summaries (timing, arrests, convictions, pre-adverse action process, adverse action process) are available on the Ogletree Deakins Client Portal to Premium-level subscribers. For more information on the Client Portal or a Client Portal subscription, reach out to clientportal@ogletreedeakins.com.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts