The City of Spokane, Washington, recently enacted Ordinance No. C-35564, making Spokane the second municipality (joining Seattle) in Washington state to “ban the box.” This new law limits when employers can inquire into and consider the criminal history of a job applicant. An employer may inquire into and generally consider a candidate’s criminal history, but only after conducting an in-person, telephonic, video interview, or if there is no interview, after a conditional offer of employment. The portions of Spokane’s ban-the-box ordinance applicable to private employers will go into effect on June 14, 2018, although the City has indicated that it will not impose any citations or fines for violations of the ordinance until after January 1, 2019.
The scope of the new ban-the-box ordinance is fairly broad, covering all employers within the City of Spokane, including temporary staffing agencies. Moreover, the restrictions of the ordinance seemingly apply to employees, as well as independent contractors.
Key aspects of Spokane’s ban-the-box ordinance applicable to private employers include the following:
|The ordinance prohibits employers from doing the following:
|Exceptions||The ordinance does not apply to:
|Timing||Before Interview / Conditional Offer||The ordinance creates a blanket prohibition on inquiring, disqualifying, or rejecting an applicant based on his or her criminal history.|
|During Interview||While the ordinance implies that employers may inquire about criminal history during an interview, it is unclear at what point in the interview process such inquiries would be acceptable (asking about arrest/conviction records at the beginning of an interview is significantly different than asking at the conclusion, but both are during the interview).|
|After Interview / Conditional Offer||Employers may inquire about and consider an applicant’s criminal history and arrest records in decisions that may disqualify or result in the rejection of an applicant. In doing so, employers must still comply with all applicable laws and U.S. Equal Employment Opportunity Commission (EEOC) guidance regarding use of these criminal history and arrest records.|
|Compliance||Employers have until June 14, 2018, to come into compliance.|
|Enforcement||Spokane will begin to issue fines and citations on January 1, 2019.|
|Fine||A violation is a “class 1 civil infraction,” which carries a penalty of $261, and subsequent fines may be doubled.|
The City of Seattle is the only other municipality in Washington State with a ban-the-box ordinance applicable to private employers. Seattle passed its ordinance in late 2013 (found at Seattle Municipal Code 14.17 et. seq.). Of note, a statewide ban-the-box law gained momentum in Washington’s 2017 legislative session, but it was never enacted into law. The Washington legislature is likely to continue considering ban-the-box proposals in upcoming legislative sessions, following Spokane and Seattle’s lead.
Under Spokane’s ban-the-box ordinance, an employer may inquire about or use a candidate’s criminal conviction or arrest records in a hiring decision, but it must first conduct an in-person, telephonic, or video interview or extend a conditional offer of employment. The more important takeaway, however, is that employers may only use arrest and conviction records in a non-discriminatory fashion in accordance with the applicable EEOC guidance. For example, the EEOC guidance states that it may be discriminatory to use criminal record exclusion policies or practices that are not “job related and consistent with business necessity.” Seattle’s ban-the-box ordinance attempts to square the EEOC guidance with its law, requiring employers to have a “legitimate business reason” to use an arrest record as a basis for an adverse employment action. The issue can be nuanced, and employers may need to consult the EEOC guidance and applicable law to ensure that they do not use criminal histories in an illegal or discriminatory manner.
The Spokane ordinance and the “ban the box” laws in other jurisdictions, including all federal and state background check requirements, are summarized in the firm’s OD Comply: Background Checks and OD Comply: Employment Applications subscription materials, which are updated and provided to OD Comply subscribers as the law changes.