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House Bill 1701 - Asking job applicants about prior arrests or convictions.

    March 17, 2015

    House Bill 1701 - Asking job applicants about prior arrests or convictions.

    Washington law currently does not expressly prohibit an employer from asking a prospective employee about prior arrests or convictions and, in fact, some jobs require the employer investigate an applicant’s criminal history (e.g. some persons who work with children or vulnerable adults).

    If passed, House Bill 1701 would prohibit most employers from asking most job applicants about arrests or convictions before an applicant is determined otherwise qualified for a position.  The proposed legislation makes unlawful an employment policy or practice that automatically or categorically excludes individuals with an arrest or conviction from consideration prior to a determination that the applicant is otherwise qualified for the position.

    House Bill 1701 defines arrest or conviction to “include 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 such case resulted in a finding of guilt.”  It defines otherwise qualified to mean “that the applicant meets the basic criteria for the position as set out in the advertisement or job description.”

    In addition, the proposed legislation would prohibit an employer from advertising employment openings in a way that excludes people with arrests or convictions.  For example, the Bill would make unlawful ads that state “felons,” “criminal background”. 

    House Bill 1701 would not apply to any employer hiring a person who will have unsupervised access to children or a vulnerable adult or vulnerable person, as currently defined by Washington law.  It likewise would not apply to any employer, like financial institutions, who are expressly permitted or required under any federal or state law to inquire into an applicant’s arrest or conviction record.

    The proposed legislation would grant applicants a civil cause of action against an employer that violated the law, and would impose a presumption that the applicant had been damaged equal to the cost of the application, if any, plus $500.  House Bill 1701 also would award an applicant that prevailed on a civil claim the applicant’s legal fees and costs, plus recovery of any additional economic damages the applicant could prove, such as lost income.

    While the proponents of the legislation claim the new law would give applicants a fair chance at employment opportunities and contribute to the rehabilitation of convicted criminals, the Bill is another trap for unwary employers.  Employers who failed to comply with the law, even inadvertently, could subject themselves to potential civil litigation, and payment of the applicant’s attorneys’ fees, even in cases where only the statutory imposed $500 damages were imposed.

    Presently, the Bill is in committee and it is unclear if the Bill has sufficient support to become law.  For now, employers may still inquire about a person’s criminal history, subject to the typical employer concerns, such as an applicant later claiming the questions evidence an intent to discriminate due to race, gender, or other immutable characteristic.

    Brian A. Walker helps businesses and individuals in employment, business, and real estate related litigation and transactions from the Wenatchee office of Ogden Murphy Wallace PLLC. You can reach Brian if you have questions or comments at or at (509) 663-1954.