ENGROSSED SUBSTITUTE SENATE BILL 5312
State of Washington
65th Legislature
2017 Regular Session
By Senate Commerce, Labor & Sports (originally sponsored by Senators Baumgartner, Saldaña, Walsh, Billig, Angel, Hasegawa, Keiser, Chase, Zeiger, Rolfes, Ranker, Fain, Frockt, Conway, Wellman, Darneille, Pedersen, and Miloscia)
READ FIRST TIME 02/06/17.
AN ACT Relating to prohibiting certain employers from including any question on an application about an applicant's criminal record, inquiring either orally or in writing about an applicant's criminal records, or obtaining information from a criminal background check, until after the employer initially determines that the applicant is otherwise qualified; adding a new chapter to Title 49 RCW; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION.  Sec. 1.  The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Criminal record" includes any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.
(2) "Employer" includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.
(3) "Otherwise qualified" means that the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.
NEW SECTION.  Sec. 2.  (1) An employer may not include any question on any application for employment, inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified for the position. Once the employer has initially determined that the applicant is otherwise qualified, the employer may inquire into or obtain information about a criminal record and consider an applicant's criminal record in a hiring decision.
(2) An employer may not advertise employment openings in a way that excludes people with criminal records from applying. Ads that state "no felons," "no criminal background," or otherwise convey similar messages are prohibited.
(3) An employer may not implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position. Prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.
(4) This section does not apply to:
(a) Any employer hiring a person who will or may have unsupervised access to children under the age of eighteen, a vulnerable adult as defined in chapter 74.34 RCW, or a vulnerable person as defined in RCW 9.96A.060;
(b) Any employer who is hiring for a position that includes:
(i) Services to be performed at or in a residential property, excluding all persons certified or licensed under Title 18 or 19 RCW;
(ii) Solicitation at or in a residential property of products or services; or
(iii) Residential delivery services;
(c) Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant's or employee's criminal record for employment purposes;
(d) Employment by a general or limited authority Washington law enforcement agency as defined in RCW 10.93.020 or by a criminal justice agency as defined in RCW 10.97.030(5)(b); or
(e) To an employer seeking a nonemployee volunteer.
NEW SECTION.  Sec. 3.  (1) This chapter may not be interpreted or applied to diminish or conflict with any requirements of state or federal law, including Title VII of the civil rights act of 1964; the federal fair credit reporting act, 15 U.S.C. Sec. 1681; the Washington state fair credit reporting act, chapter 19.182 RCW; and state laws regarding unsupervised access to children or vulnerable persons, RCW 43.43.830 through 43.43.845.
(2) This chapter may not be interpreted or applied as imposing an obligation on the part of an employer to provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a criminal record or who is facing pending criminal charges.
(3) This chapter may not be construed to prohibit an employer from declining to hire an applicant with a criminal record or from terminating the employment of an employee with a criminal record.
(4) This chapter may not be construed to discourage or prohibit an employer from adopting employment policies that are more protective of employees and job applicants than the requirements of this chapter.
(5) This chapter may not be construed to create a private right of action to seek damages or remedies of any kind. The exclusive remedy available under this chapter is enforcement described in section 4 of this act. This chapter does not create any additional liability for employers beyond that enumerated in this chapter.
NEW SECTION.  Sec. 4.  (1) The state attorney general's office shall enforce this chapter. Its powers to enforce this chapter include the authority to:
(a) Investigate violations of this chapter on its own initiative;
(b) Investigate violations of this chapter in response to complaints and seek remedial relief for the complainant;
(c) Educate the public about how to comply with this chapter;
(d) Issue written civil investigative demands for pertinent documents, answers to written interrogatories, or oral testimony as required to enforce this chapter;
(e) Adopt rules implementing this chapter including rules specifying applicable penalties; and
(f) Pursue administrative sanctions or a lawsuit in the courts for penalties, costs, and attorneys' fees.
(2) In exercising its powers, the attorney general's office shall utilize a stepped enforcement approach, by first educating violators, then warning them, then taking legal, including administrative, action. Maximum penalties are as follows: A notice of violation and offer of agency assistance for the first violation, which must allow a ninety-day period to correct the violation before a second violation is assessed; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation.
NEW SECTION.  Sec. 5.  If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.
NEW SECTION.  Sec. 6.  If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.
NEW SECTION.  Sec. 7.  The state of Washington fully occupies and preempts the entire field of employment laws related to criminal records and other matters covered within this chapter within the boundaries of the state. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to employment laws related to criminal records and other matters covered within this chapter that are specifically authorized by state law and are consistent with this chapter. Local laws and ordinances in existence on the effective date of this section that are inconsistent with this chapter are preempted and repealed, regardless of the nature of the code, charter, or home rule status of such a city, town, county, or municipality.
NEW SECTION.  Sec. 8.  Sections 1 through 4, 6, 7, and 9 of this act constitute a new chapter in Title 49 RCW.
NEW SECTION.  Sec. 9.  This act may be known and cited as the Washington fair chance act.
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