On November 1, 2013, a new employment background check law goes into effect in the City of Seattle. What is this new law? How does it change the way employers screen potential job applicants? Most importantly, how does this law affect you if you have a criminal record and are searching for a job?
The entirety of the new law is found in Seattle Municipal Code (SMC) Title 14 Chapter 17. The law will be applicable to all employers in the city of Seattle – including the City of Seattle itself. However, there are two major exceptions. The law will not apply to:
(1) Any job offered through any state or federal government agency.
(2) Any job related to law enforcement or the criminal justice system, or any job involving un-supervised access to certain classes of vulnerable persons; like children, the developmentally disabled, and the elderly.
The new law puts into place four critical rules relating to how employers may use background checks to screen job applicants:
(1) Employers may no longer advertise that persons with a criminal record will be excluded from a job opening.
(2) Employers may no longer ask a person to disclose a criminal record on a job application. (This is commonly referred to as a "Ban the Box" provision, which calls for employers to wait until a prospective employee is being interviewed or has a provisional job offer before inquiring whether he or she has a criminal past.)
(3) An employer may only conduct a background check on a person after the employer has screened all applicants to eliminate legitimately un-qualified applicants from consideration.
(4) An employer may deny a job to a person based on the existence of a criminal record only if the employer can identify a legitimate business reason for doing so.
What does “legitimate business reason” mean? According to the Seattle Office for Civil Rights, this means that an employer must have a good faith reason to believe that:
(1) The existence of a person's criminal record will have a negative impact on the person's ability to perform the job, or
(2) The existence of a person's criminal record will cause harm or injury to people or property involved in the business. Under this scenario, the employer must take into account:
(a) The seriousness of the criminal conduct.
(b) The number of criminal charges or convictions.
(c) The time that has elapsed since the criminal conduct occurred.
(d) The person's efforts at rehabilitation and good conduct.
(e) The specific duties and responsibilities required of the job.
(f) The place and manner in which the job is to be performed.
What options does a person have after a background check reveals a criminal record? If an employer performs a background check and the check reveals information that will cause the employer to deny the job position, the law requires that the employer notify the person of the decision and provide the opportunity to explain or correct what was revealed. However, the law only requires the employer to provide a two business day window for this to happen.
What type of criminal records may be considered under this law? "Conviction Record" and "Criminal History Record Information" means that any conviction or guilty finding to a crime may be considered. But certain other types of cases can be considered as well; like:
(1) An acquittal due to a finding of not guilty by reason of insanity or incompetency;
(2) A dismissal entered after a period of probation, suspension, or deferral of sentence.
(3) A dismissal entered after completion of a pre-trial diversion program or after a “stipulated order of continuance” can be considered as criminal history.
However, this law specifically excludes the following from “Conviction Record” and “Criminal History record Information:”
(1) Any record that has been expunged.
(2) Any record that has been sealed.
(3) Any conviction record that has been vacated.
(4) Any conviction record that has been the subject of a Governor's pardon.
An important thing to remember is that if a conviction was dismissed based upon a deferral of sentence it is still considered a “conviction record.” Therefore, please review our website where it explains what steps a person must take to vacate a conviction even after the conviction has been dismissed based upon a deferral of sentence.
What happens if you think an employer violated these rules? An employer found to have violated any of these rules may be required to pay a monetary penalty directly to the person discriminated against. Any allegations of discrimination must be filed with the Seattle Office for Civil Rights. However, no employer faces criminal charges for discrimination, and no person may file a lawsuit against the employer based upon a violation of this law.
What does this law really change? This law makes several important changes to help those with a criminal record to participate in more employment seeking opportunities. The most important is that it requires employers to review all job applicants equally without looking at criminal history.
But this law doesn't guarantee jobs for people with criminal records. The law does not eliminate background checks entirely; it only delays the background check to a later point in the screening process. Therefore, if a person has a criminal record it is still important that he or she work to have the record vacated, expunged, or sealed. Otherwise, criminal records can cause the same obstacle for employment as before.
Ultimately, the success or failure of this new law will be determined by how it is enforced. An employer can still deny a job to a person with a criminal record if the employer can establish a “legitimate business reason.” How the Seattle Office for Civil Rights interprets “legitimate business reason” will ultimately decide whether this law helps people, or just gives employers legal justification to use criminal records as a criteria to deny employment.
Call us today to explore your options in clearing your past criminal records.