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:

(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.

(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.

(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.

(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.

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