Seattle allows employers to conduct criminal background checks after an initial screening

By:  Laura Randazzo, Vice President of Compliance, Aurico

The Seattle City Council has voted unanimously to prohibit employers from inquiring about an applicant’s criminal record or excluding from consideration for employment until after an initial screening.  Council Bill 117796 will take effect on November 1, 2013, if, as expected, Seattle Mayor Mike McGinn (D) signs the measure.

Coverage

The bill would be effective for employers with one or more employee, and job placement, referral, and employment agencies. It would apply to all advertisements for positions, employment applications, and any employment policy or practice.

Excluded employers from this bill are as follows:

• An individual whose job duties or prospective job duties include law enforcement, policing, crime prevention, security, criminal justice, or private investigation services; or
• An individual who will or may have unsupervised access to children under 16 years of age, developmentally disabled persons, or vulnerable adults during the course of his or her employment.

What is Permitted:

The Bill is similar to the recommendations of the EEOC criminal guidance and does allow employers to ask about an applicant’s criminal or arrest record after an initial screening to eliminate unqualified applicants.

Employers may perform a criminal background check on a job applicant or require a job applicant to provide criminal history information, but only after the employer has completed an initial screening of applications or resumes eliminating unqualified applicants.  The Bill suggests that an employer perform a criminal background check on final candidates only. 

Arrest Records

Employers may inquire about the conduct related to an arrest, but will be prohibited from taking any “tangible adverse employment action” based solely on an arrest record, unless the employer has a legitimate business reason(s) for taking such action. A “tangible adverse employment action” means “a decision by an employer to reject an otherwise qualified job applicant, or to discharge, suspend, discipline, demote, or deny a promotion to an employee.” 

Convictions and pending convictions

Employers cannot take an adverse employment action solely based on an employee or applicant’s conviction or pending conviction record unless the employer has a legitimate business reason for taking such action.

A legitimate business reason is defined as:

• Will have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held; or
• will harm or cause injury to people, property, business reputation, or business assets, and the employer has considered the following factors:
• 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 charge, excluding periods of incarceration;
• 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.

Correction Period

Before taking a tangible adverse employment action, the employer shall:

·         identify the record(s) or information they are relying on

·         give the applicant or employee a reasonable opportunity,

·         Hold position open for two business days, to explain or correct that information. 

In addition employers may but are not required to hold open a position beyond that to resolve questions or issues about an individual’s criminal conviction record. 

Remedies

• This bill does not create a private cause of action
• The exclusive remedy for a violation of these requirements is a notice of infraction and offer assistance from the Seattle Office of Civil Rights (SOCR) for first violation, a monetary penalty capped at $750.00 for the second offense and a monetary penalty capped at $1,000.00 for a subsequent offense.

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Aurico recommends that employers should consider reviewing their policies on background checks, allow for an individualized assessment when reviewing criminal information and continue to maintain a safe and productive work environment by conducting a thorough background check.  Aurico continues to monitor these regulations and provides tools through technology to assist clients in complying with applicable regulations.