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Seattle Adopts Criminal Background Check Ordinance

Posted Wednesday, July 3, 2013 by Ronald L. Bueing

alt textOn June 10, 2013, the Seattle City Council adopted an ordinance significantly affecting the ability of businesses to use criminal background checks in screening applicants for employment. Mayor McGinn is expected to sign the ordinance, which will become effective November 1, 2013. Persons involved in hiring or in making decisions regarding termination of employees should become familiar with the numerous provisions of this bill.

In general, the law will prevent employers from inquiring about a job applicant’s criminal history at the initial application stage. Only after an initial screening has been done to weed out unqualified applicants can an employer inquire about an applicant’s criminal background. Further, employers cannot take a “tangible adverse employment action” based solely on an applicant’s criminal conviction record or pending criminal charges unless the employer has a “legitimate business reason for taking such action.”

In addition, employers are not allowed to carry out an adverse employment action against an existing employee based solely on an employee’s arrest record.

In determining whether an employer has a “legitimate business reason” for taking an adverse employment action, the employer must believe in good faith that the nature of the criminal conduct will have a negative impact on the employee’s or applicant’s fitness for ability to perform the position or will harm or cause injury to people, property, business reputation or business assets.

In addition, the employer must consider all of the following factors in analyzing whether a legitimate business reason exists: the seriousness of the underlying criminal conviction or pending criminal charge; the number and types of convictions or pending criminal charges; the time that has elapsed since the conviction or pending criminal charges; any verifiable information related to the individual’s rehabilitation or good conduct provided by the individual; the specific duties and responsibilities of the position sought or held, and; the place and manner in which the position will be performed.

Further, before carrying out an adverse employment action based solely on an employee or applicant’s criminal conviction record or pending criminal charge, the employer must identify to the applicant or employee the records or information on which they are relying and give the applicant or employee or reasonable opportunity to explain or correct that information.

There is no private right of action created under the law, but the ordinance is enforceable by the Seattle Office for Civil Rights, which can impose monetary penalties of $750 to $1,000 for each violation.

For more information, contact Ron Bueing at (206) 805-1490.

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