Washington State Background Check Laws
Introduction
Washington state has established comprehensive background check regulations that significantly expand upon federal requirements, creating one of the most protective frameworks for job applicants and employees in the United States. Known for its progressive approach to employment law, Washington has implemented strict guidelines that limit how employers can use criminal history information in hiring decisions.
Key Differences from Federal Law
While federal law under the Fair Credit Reporting Act (FCRA) provides baseline protections, Washington state law goes considerably further. The state restricts the types of criminal records that can be reported, implements “ban the box” policies, and provides additional procedural requirements that employers must follow when conducting background checks.
Why State Laws Matter
Understanding Washington’s specific requirements is crucial for employers operating in the state. Non-compliance can result in significant penalties, including civil lawsuits, administrative fines, and reputational damage. For multi-state employers, Washington’s stringent requirements often necessitate separate policies and procedures for operations within the state.
State Background Check Laws
Primary Statutes
Washington’s background check framework is primarily governed by the Washington Fair Credit Reporting Act (WFCRA), codified in RCW Chapter 19.182. This state law mirrors many federal FCRA provisions while adding Washington-specific protections. Additionally, the Fair Chance Act (RCW 49.94) establishes restrictions on when and how employers can inquire about criminal history.
The state also enforces specific provisions under:
- RCW 9.96A – Criminal Records Privacy Act
- RCW 49.60 – Washington Law Against Discrimination
- RCW 43.43.830-845 – Criminal History Background Checks
Regulatory Agencies
The Washington State Human Rights Commission serves as the primary enforcement agency for employment discrimination matters, including those related to background checks. The Washington State Attorney General’s Office also plays a crucial role in enforcing consumer protection aspects of background check laws.
Enforcement
Washington takes enforcement seriously, with multiple avenues for addressing violations:
- Private right of action for individuals
- Administrative complaints through state agencies
- Civil penalties up to $1,000 per violation
- Potential criminal charges for willful violations
Ban the Box / Fair Chance
State Requirements
Washington’s Fair Chance Act prohibits employers from including questions about criminal history on job applications. This “ban the box” law applies to all employers in Washington, regardless of size. Key provisions include:
- No criminal history inquiries on initial applications
- No advertising language excluding applicants with criminal records
- Criminal history inquiries permitted only after initial determination of qualification
Local Ordinances
Several Washington municipalities have enacted additional fair chance ordinances:
Seattle: The city’s Fair Chance Employment Ordinance provides even stronger protections than state law, including:
- Restrictions on considering arrests not leading to conviction
- Mandatory interactive process for adverse decisions
- Specific job posting requirements
Spokane: Implements similar ban the box provisions with additional notice requirements.
Timing Restrictions
Employers may inquire about criminal history only after determining an applicant is otherwise qualified for the position. This typically means:
- After reviewing the application and resume
- After conducting an initial interview (if part of the process)
- Before making a conditional offer of employment
Criminal Record Rules
Lookback Periods
Washington law restricts the reporting of certain criminal records based on time elapsed:
- Convictions: No time limit for reporting felony convictions
- Misdemeanors: Generally reportable for seven years
- Arrests not leading to conviction: May not be reported or considered
- Dismissed charges: Generally not reportable
Reportable Offenses
Washington prohibits consumer reporting agencies from including:
- Arrests not followed by conviction
- Convictions that have been expunged, sealed, or vacated
- Juvenile records (with limited exceptions)
- Non-conviction data older than seven years
Expungement Rules
Washington has robust expungement laws allowing individuals to vacate certain convictions. Once vacated:
- The conviction cannot be included in background reports
- Employers cannot consider vacated convictions
- Individuals may legally state they have not been convicted
Employer Obligations
Consent Requirements
Before conducting a background check, Washington employers must:
1. Provide clear written disclosure separate from other documents
2. Obtain written authorization from the applicant or employee
3. Specify the scope of the background check
4. Identify the consumer reporting agency being used
Adverse Action Process
If an employer plans to take adverse action based on background check results:
Pre-Adverse Action:
- Provide copy of the background report
- Include summary of rights under state and federal law
- Allow reasonable time for response (typically 5-10 business days)
Post-Adverse Action:
- Send written notice of the adverse decision
- Include name and contact information of the CRA
- Inform of right to dispute accuracy
- State that the CRA did not make the employment decision
Record Keeping
Employers must maintain background check records for:
- Three years from the date of the check
- One year after termination if the check led to employment
- All authorizations, disclosures, and adverse action notices
Industry-Specific Rules
Healthcare
Healthcare employers face additional requirements under RCW 43.43.830, including:
- Mandatory criminal background checks for positions with vulnerable populations
- Specific disqualifying offenses for certain healthcare positions
- Additional checks through the Department of Health
Education
School districts and educational institutions must comply with:
- Mandatory fingerprint-based FBI checks for certificated employees
- Ongoing monitoring requirements
- Specific prohibited offenses under RCW 28A.400.303
Financial Services
Financial institutions must follow:
- Federal requirements under Section 19 of the Federal Deposit Insurance Act
- Additional state licensing requirements for specific positions
- Enhanced due diligence for fiduciary roles
Other Regulated Industries
Transportation: Commercial drivers subject to federal DOT requirements plus state-specific rules
Security Services: Armed and unarmed security guards require state licensing and background checks
Childcare: Mandatory checks through Department of Children, Youth, and Families
Best Practices for Compliance
State-Specific Recommendations
1. Develop Washington-specific policies: Don’t rely on generic national policies
2. Train hiring managers: Ensure understanding of timing restrictions
3. Use compliant forms: Verify all disclosures meet Washington requirements
4. Partner with knowledgeable CRAs: Work with providers familiar with Washington law
5. Conduct regular audits: Review practices quarterly for compliance
Common Pitfalls
Avoid these frequent mistakes:
- Asking about criminal history too early in the process
- Using arrest records in employment decisions
- Failing to provide proper pre-adverse action notices
- Not maintaining required documentation
- Applying blanket criminal history policies
How to Stay Updated
- Monitor Washington State Legislature website for law changes
- Subscribe to updates from the Human Rights Commission
- Join state HR associations for compliance alerts
- Consult with employment law attorneys regularly
- Review practices when regulations change
FAQ
Q: Can I run a background check on current employees in Washington?
A: Yes, but you must obtain fresh written consent and follow all disclosure requirements. The same restrictions on criminal history use apply.
Q: Are there exceptions to the ban the box law for certain positions?
A: Yes, positions where federal or state law requires criminal background checks are exempt from initial application restrictions, but employers must still follow other fair chance requirements.
Q: How long do I have to wait before making an adverse decision based on a background check?
A: While Washington law doesn’t specify an exact timeframe, best practice is to wait at least 5-7 business days after providing pre-adverse action notice to allow for disputes or explanations.
Q: Can I consider out-of-state convictions when hiring in Washington?
A: Yes, but the same restrictions apply regarding arrest records, timing, and relevance to the position. All convictions must be evaluated consistently with Washington law.
Q: What happens if I accidentally violate Washington’s background check laws?
A: Penalties vary based on the violation and whether it was willful. Immediate steps should include consulting with legal counsel, correcting the practice, and potentially notifying affected individuals.
Conclusion
Washington state’s comprehensive background check laws require careful attention and ongoing compliance efforts from employers. By understanding these requirements and implementing proper procedures, organizations can maintain fair hiring practices while protecting their interests.
The complexity of Washington’s regulations underscores the importance of working with experienced partners who understand state-specific requirements. Whether you’re a small business owner, property manager, or enterprise HR professional, ensuring compliance while maintaining efficient hiring processes is essential.
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