Washington State is significantly expanding its Fair Chance Act (FCA), making it one of the nation's most comprehensive ban-the-box laws. Initially enacted in 2018, the FCA prohibited covered employers from inquiring about criminal history until after determining an applicant was otherwise qualified. Beginning July 1, 2026, employers with 15 or more employees will face additional compliance steps when using criminal background information in hiring. Employers with less than 15 employees must comply by January 1, 2027.
Key Changes to the Fair Chance Act
1. New Timing for Criminal History Checks
Under the amended law, employers must now wait until after extending a conditional offer of employment before initiating any criminal background check or evaluating criminal history information, even if the applicant has already been deemed "otherwise qualified."
By delaying background checks until the post-offer stage, the law minimizes the risk of unconscious bias or automatic disqualification early in the recruitment pipeline. It also reflects a growing national shift toward ban-the-box policies, which aim to give individuals with criminal records a fair opportunity to compete for merit-based employment. These policies are gaining traction nationwide, with similar timing restrictions in states like California, Illinois, and New York.
2. Action Steps for Employers
- Revisit recruitment workflows and ensure that criminal history inquiries (whether conducted internally or through a third-party background screening provider) occur only after a conditional offer.
- Avoid violations of this timing rule to prevent exposure to legal action or penalties.
Restrictions on the Use of Criminal Records
Employers cannot take any adverse employment action, such as rejection or termination, based solely on Arrest records (including pending charges) or juvenile conviction records.
These restrictions reflect a broader legislative intent to distinguish between mere allegations and proven conduct. Arrests that do not result in convictions are not reliable indicators of criminal behavior and can disproportionately affect marginalized groups. By excluding juvenile records and non-conviction data from employment decisions, the law encourages a more equitable hiring process focusing on verified, relevant criminal history rather than assumptions or incomplete information.
Action Steps for Employers
- Consider adult arrest records only when the person is out on bail or has been released on personal recognizance while awaiting trial
- Adjust screening criteria
- Ensure background check providers are aligned with these limitations
3. Automatic Exclusion Policies
Under the amended Fair Chance Act, employers can no longer enforce policies that automatically disqualify candidates solely because they have a criminal record. These types of one-size-fits-all exclusions are now expressly prohibited, regardless of the nature or timing of the offense. Employers must assess each applicant's criminal history in the context of the job in question. That means evaluating whether the offense is relevant to the duties and responsibilities of the position and whether it poses any legitimate risk to the business, its customers, or the public.
This shift emphasizes fairness and the importance of context over rigid policy, allowing individuals to be considered for employment based on their qualifications and recent conduct rather than being immediately disqualified due to past mistakes.
Action Steps for Employers
- Review and revise any current hiring policies or practices that include automatic exclusions, especially those embedded in job descriptions, applications, or background screening criteria.
4. Legitimate Business Reason Requirement
An employer can only reject an applicant or take action against an employee based on a conviction if they can establish a "legitimate business reason." This is defined as a good-faith belief that the nature of the criminal conduct:
- Negatively impacts the person's fitness or ability to perform the role; or
- It could harm people, property, business reputation, or assets.
This requirement forces employers to make defensible, well-documented decisions grounded in the specific demands and risks of the job. Relying on generalized concerns or assumptions about criminal history is no longer sufficient. This standard ensures that hiring decisions are fair and legally justifiable, reducing the likelihood of discriminatory practices and increasing transparency in employment actions.
Action Steps for Employers
- Connect the conviction to a tangible and demonstrable risk related to the position.
5. Individualized Assessment Requirements
To support a legitimate business reason, employers must document an individualized assessment. This must include the evaluation of the following:
- The seriousness of the offense.
- Number and type of convictions.
- Time since the conviction (excluding incarceration).
- Evidence of rehabilitation, training, or work experience.
- Job-specific responsibilities and work environment.
This documented reasoning becomes crucial if a decision is challenged, emphasizing the need for a thoughtful, case-by-case approach. A consistent process ensures fairness and demonstrates that employment decisions are based on objective, job-related criteria.
Action Steps for Employers
- Train hiring managers to conduct and document these assessments properly to reduce liability and uphold compliance.
6. Expanded Adverse Action Notices
Similar to the federal Fair Credit Reporting Act (FCRA), the revised FCA requires a two-step notice process for both before and at the time of the adverse employment action:
- First Notice: Identify the criminal record under consideration and hold the position open for at least two business days. If the employer combines this with FCRA procedures, the waiting period extends to five business days. This is designed to give applicants a meaningful opportunity to address or explain their record or provide information about their rehabilitation, good conduct, work experience, education, and training before making a final decision.
- Final Notice: Detail the employer’s decision, including documented reasoning, an evaluation of the relevant factors (such as how the conviction impacts the role or business operations), and a summary of any information the applicant provided in response to the initial notice.
Actions Steps for Employers
- Ensure adverse action procedures align with FCRA and the FCA to maintain compliance and protect against legal challenges.
New Disclosure Requirement During Hiring
In addition, employers must now provide written disclosure when they inform candidates that a post-offer background check will occur. This disclosure must include:
- A summary of the FCA's provisions.
- A copy of the Washington Attorney General's FCA guide.
- This disclosure must also be provided if an applicant voluntarily discusses their criminal record during the interview.
This requirement adds upfront transparency, ensuring applicants are fully informed of their legal rights before conducting a background check. Employers should incorporate this disclosure into their standard hiring communications and train staff accordingly to avoid missteps that could result in penalties or delays.
Penalties for Noncompliance
Employers that fail to comply with these new requirements may face civil penalties and compensatory damages awarded to aggrieved individuals. The state emphasizes enforcement, making legal and procedural compliance a top priority for HR and legal teams.
In addition to financial consequences, noncompliance can damage an organization's reputation and lead to costly legal disputes. Employers should proactively audit their hiring practices, update relevant policies, and ensure that all personnel involved in the hiring process are trained on the new requirements. A proactive approach can mitigate risk and provide a smoother transition as the effective dates approach.
How DISA Can Help
At DISA Global Solutions, we understand that evolving legislation like Washington's Fair Chance Act can introduce uncertainty and complexity into your hiring process. Our background screening solutions are designed to support compliance with both federal and state laws, including individualized assessment capabilities, adverse action workflows, and secure documentation tools. Our compliance experts stay ahead of legislative changes and help you navigate multi-jurisdictional requirements—whether operating in Washington or nationwide.
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About DISA Global Solutions
Founded in 1986, DISA is the industry-leading provider of employee screening and compliance services. Headquartered in Houston, with more than 35 offices throughout North America and Europe, DISA’s comprehensive scope of services includes background screening, drug and alcohol testing, DOT & HR compliance, occupational health services, and I-9/E-Verify. DISA assists employers in making informed staffing decisions while building a culture of safety in their workplace.