Seattle employers are about to become much more restricted in their ability to inquire into or act upon the criminal records of applicants and employees. On November 1st, the Seattle Job Assistance Ordinance, SMC 14.17, takes effect and will apply 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.
The Ordinance imposes the following new restrictions on the hiring process:
- Advertisements for positions cannot state that applicants with criminal records will not be considered or otherwise categorically exclude such applicants;
- The employer cannot implement any policy or practice that automatically excludes all applicants with criminal histories;
- The employer must complete an initial screening process to weed out any unqualified candidates before the employer can question applicants about their criminal histories or run criminal background checks on applicants;
- The employer cannot refuse to hire an applicant solely because he or she has an arrest record (as opposed to a conviction record); and
- The employer 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.
In addition, the Ordinance provides that an employer cannot take tangible employment actions against a current employee – such as termination, discipline, demotion, or denial of a promotion — solely because of that employee’s arrest record. Nor can the employer take tangible employment actions against a current employee solely because of 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” is considered to be circumstances in which the employer believes, in good faith, that a conviction will negatively impact the individual’s fitness or ability to perform the job at issue or will be likely to result in harm to people, property, business reputation, or business assets. The employer is required to consider the following factors in making the determination that a legitimate business reason justifies the employment action:
- The seriousness of the underlying criminal conviction or pending criminal charge;
- The number and types of convictions or pending criminal charges;
- The time that has elapsed since the conviction or pending criminal charge;
- Any verifiable information related to the applicant’s or employee’s rehabilitation or good conduct;
- The specific duties and responsibilities of the job at issue; and
- The place and manner in which the position will be or is performed.
Once the 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.
Affected Seattle employers should evaluate and revise their policies, application materials, and hiring practices to ensure compliance with the new Ordinance.