Authors: Kyle D. Nelson (Seattle), Adam T. Pankratz (Seattle)
Published Date: December 29, 2017
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 mayinquire 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:
Advertising employment openings in a way that excludes people with arrest or conviction records from applying. Examples include: advertisements stating “no felons” or “no criminal background.”
Engaging in any of the following before an in-person, telephonic, or video interview, or if there is no interview before a conditional offer of employment:
including questions on an employment application inquiring into an individual’s arrest or conviction record;
engaging in oral or written inquiries into an applicant’s arrest or conviction record;
conducting a background check; or
otherwise obtaining information about an applicant’s arrest and criminal history.
Using, distributing, or disseminating an applicant’s arrest or conviction record, unless required or allowed by law.
Disqualifing an applicant prior to an in-person, telephonic, or video interview solely because of a prior arrest or conviction unless the conviction is related to significant duties of the job or otherwise allowed under the law
Rejecting an applicant for failure to disclose a criminal record prior to initially determining whether the applicant is otherwise qualified for the position.
The ordinance does not apply to:
any employer hiring an employee who will have unsupervised access to children under the age of 18, a vulnerable adult, or a vulnerable person (as defined under state law);
employers that are expressly permitted or required under any federal or Washington state law to inquire into, consider, or rely on information about an applicant’s arrest or conviction record for employment purposes;
any law enforcement agencies (as defined under state law); or
employers conducting criminal background checks that are specifically permitted or required under state or federal law.
Before Interview / Conditional Offer
The ordinance creates a blanket prohibition on inquiring, disqualifying, or rejecting an applicant based on his or her criminal history.
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).
AfterInterview / 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.
Employers have until June 14, 2018, to come into compliance.
Spokane will begin to issue fines and citations on January 1, 2019.
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 mayinquire 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.
Kyle is an advisor and employment litigator in Ogletree Deakins' Seattle office. He represents employers in state and federal courts, as well as before administrative agencies. Kyle has experience handling employers against alleged claims for discrimination, harassment, retaliation, constructive discharge, and wrongful termination. Kyle also has experience in employee non-compete, non-disclosure, non-solicitation, and misappropriation of trade secret claims. Prior to joining Ogletree Deakins,...
Mr. Pankratz represents local and national employers in a myriad of employment-related and complex commercial matters, including litigation involving discrimination, retaliation, harassment, wage and hour, wrongful termination, ADA and FMLA leave issues, and other matters in state and federal courts and administrative agencies. Mr. Pankratz has experience successfully representing employers in executive termination, non-compete and unfair competition disputes. Recent successes include obtaining...