BILL REQ. #:  H-3098.1 

Read first time 01/21/14.   Referred to Committee on Labor & Workforce Development.

     AN ACT Relating to prohibiting employers from asking about or using nonconviction information in initial applications for employment; adding new sections to chapter 49.44 RCW; creating new sections; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that unfairly harmful consequences result from employers considering nonconviction information in initial screening of employment applications, including such practices as asking applicants if they have ever been arrested, and then refusing to consider all applicants who check the box responding "yes." This act is intended to reduce the harm of such employment practices by banning the box; in other words, stopping employers from asking about or otherwise using nonconviction information in initial screening, before determining the applicant is otherwise qualified for the position. Banning the box gives applicants a fair chance to be considered on the merits of their qualifications, merits that would otherwise be disregarded due to information that is not a finding of guilt.
     The legislature further finds that exclusion of applicants from consideration for employment opportunities based solely on nonconviction information causes harm in the form of economic instability, a lifetime of reduced employment opportunities, and reduced earning potential. Additionally, the legislature finds that by removing the barrier to employment opportunities posed by nonconviction information, the state promotes important public interests, including the interest in increasing self-sufficiency, increasing tax revenue, conserving scarce governmental resources by reducing reliance on public benefits, reducing recidivism, keeping individuals and families out of poverty, and reducing the effects of racial disparities in the criminal justice system.
     RCW 9.96A.010, enacted in 1973, articulates Washington's long-standing public policy of "encouraging and contributing to the rehabilitation of felons and to assist them in the assumption of the responsibilities of citizenship, and the opportunity to secure employment or to pursue, practice or engage in a meaningful and profitable trade, occupation, vocation, profession or business is an essential ingredient to rehabilitation and the assumption of responsibilities of citizenship." WAC 162-12-140 has long stated that preemployment inquiries about arrests are an unfair practice. Nothing in this act is inconsistent with the provisions of RCW 9.96A.010, 9.96A.020, 9.96A.030, 9.96A.050, or 9.96A.060, but enforcement powers beyond those in RCW 9.96A.040 and in WAC 162-12-140, as provided in this act, are necessary to address the harms described in this section.
     The legislature recognizes that numerous jurisdictions in the United States, including the states of California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, New Mexico, and Rhode Island, as well as the city of Seattle and forty-nine other cities in the United States, have adopted some form of ban the box legislation. In addition, recognizing the numerous benefits of a ban the box policy, one of the largest retailers in the United States, the Target corporation, recently adopted a policy prohibiting asking prospective employees about their criminal records in initial job applications. America's largest retailer, Wal-Mart, removed the box from its employment applications in 2010. This act provides more modest ban the box protection than other jurisdictions, and is a necessary step toward giving people a fair chance to work.

NEW SECTION.  Sec. 2   (1) An employer may not include a question on any application for employment, or inquire either orally or in writing, or receive information through a criminal history background check or otherwise, about nonconviction information, before having determined the applicant is otherwise qualified for the position.
     (2) An employer may not advertise employment openings in a way that excludes people with nonconviction records from applying.
     (3) An employer may not implement any policy or practice that automatically or categorically excludes all individuals with a nonconviction record from any employment position. Prohibited policies and practices include rejecting an applicant for failure to disclose nonconviction information.
     (4) This section does not apply to:
     (a) Any employer hiring a person who will care for children under the age of eighteen, a vulnerable adult under chapter 74.34 RCW, or a vulnerable person as defined in RCW 9.96A.060;
     (b) Any employer 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 arrest record for employment purposes; or
     (c) Jobs that include law enforcement, policing, crime prevention, security, criminal justice, or private investigation services.
     (5) For the purposes of this section:
     (a) "Employer" includes public agencies, private individuals, businesses and corporations, contractors, training and apprenticeship programs, and placement agencies.
     (b) "Nonconviction information" means information about a citation, arrest, or criminal case that does not result in a finding of guilt, or where a finding of guilt has subsequently been vacated or dismissed, and includes:
     (i) Nonconviction data as defined in chapter 10.97 RCW; and
     (ii) Information contained in law enforcement records or records collected by the courts relating to:
     (A) Arrests, detentions, probable cause hearings, citations, charges, and service of warrants relating to an incident that did not lead to a conviction and for which proceedings are no longer actively pending. There shall be a rebuttable presumption that proceedings are no longer actively pending if more than one year has elapsed since arrest, citation, charge, or service of warrant and no disposition has been entered;
     (B) Diversions;
     (C) Charges resulting in a dismissal, excluding dismissals based on incompetency or following completion of a deferred prosecution pursuant to chapter 10.05 RCW;
     (D) Charges resulting in acquittal other than insanity acquittals;
     (E) Convictions after a pardon on that conviction has been granted;
     (F) Charges dismissed under a stipulated order of continuance or similar agreement;
     (G) Charges dismissed pursuant to completion of a deferred sentence under RCW 9.95.240, 35.20.255, or 3.50.320, chapter 3.66 RCW, or pursuant to a deferred disposition under chapter 13.50 RCW;
     (H) Charges dismissed following vacation of the conviction pursuant to RCW 9.94A.640, 9.95.240, or 9.96.060;
     (I) Charges vacated under chapter 13.50 RCW; and
     (J) Charges resolved by forfeiture of bail other than in traffic, hunting, and fishing cases.
     In cases where charges are reduced or dismissed pursuant to a plea bargain, whether as part of a single or multiple cause numbers, the parts of records that relate to charges that satisfy the definition of nonconviction information shall be treated as nonconviction information.

NEW SECTION.  Sec. 3   (1) This act shall not be:
     (a) Construed to interfere with, impede, or in any way diminish any provision in a collective bargaining agreement or the right of employees to bargain collectively with their employers through representatives of their own choosing concerning wages or standards or conditions of employment;
     (b) 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. 1681, as amended, the Washington state fair credit reporting act, chapter 19.182 RCW, as amended, the Washington state criminal records privacy act, chapter 10.97 RCW, as amended, or state laws regarding criminal background checks, including those related to individuals with access to children or vulnerable persons, RCW 43.43.830, et seq., as amended; and
     (c) 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 conviction record or who is facing pending criminal charges.
     (2) Nothing in this act shall be construed to discourage or prohibit an employer from adopting employment policies that are more generous to employees and job applicants than the requirements of this chapter.

NEW SECTION.  Sec. 4   A right of action to enforce this act is authorized. It shall be presumed that damages to the applicant are equal to the cost of the application, if any, plus two hundred dollars. Fees and costs may be recovered, but additional damages must be proven. This right of action shall be in addition to and not in derogation of any other rights and remedies an applicant may have under any other law.

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   This act may be known and cited as the Washington jobs assistance act.

NEW SECTION.  Sec. 8   Sections 2 through 4 of this act are each added to chapter 49.44 RCW.