Seattle Job Assistance / Criminal Background Check Legislation

On June 10, the the Seattle City Council passed the job assistance / criminal background check legislation.  GSBA played a significant role in making the original bill a better piece of legislation and helped address business issues around procedures for implementation and enforcement, while supporting the concept of "banning the box" and giving second chances to deserving ex-offender applicants.  Here is a summary of our accomplishments, what the legislation does and our remaining concerns.

Business Coalition Accomplishments:

• Eliminated an applicant or employee’s private right of action against an employer for its failure to hire the applicant or terminate the employee;
• Removed requirement to provide special accommodations to ex-offender employees, similar to accommodations provided to persons with disabilities or medical conditions. For example, if an employee has a pending charge or probation or parole violation that results in incarceration, the employer would not be required to hold his or her position open until released from prison;
• Revised timing of conducting criminal background checks from after a provisional offer of employment to any time after the initial screening of applications; and
• Eliminated the ability for independent 3rd parties to bring charges of violations against an employer.

What the Legislation Does:

• Bans the box; an employer is prohibited from asking whether an individual has a criminal  arrest or conviction record on an application and from advertising a position with language that precludes ex-offenders from applying (i.e., “felons need not apply”);
• The legislation applies to any employer whose applicant and/or employee will work at least 50% within the City of Seattle;
• Allows an employer to conduct a criminal background check after its initial review of applications;
• Allows an employer to reject an ex-offender applicant or terminate an employee with pending charges or a criminal record where the employer has a “legitimate business reason;”
• Requires an employer taking an adverse action against an ex-offender applicant or employee to provide an opportunity for the applicant or employee to explain his or her situation and why an adverse action should not be taken and to hold the position open for a minimum of two days;
• Allows an aggrieved applicant or employee to bring a complaint to the Seattle Office of Civil Rights (SOCR);
• The SOCR has the ability to conduct an investigation, make a finding as to whether the employer violated the ordinance and resolve the matter with the employer;
• The SOCR can refer its findings to a hearing officer if the complaint is not resolved;
• A hearing officer upon finding a violation of the ordinance may issue fines up to $750 for the second violation and up to $1,000 for subsequent violations and award SOCR’s attorney fees against the employer.
• A panel of stakeholders will be appointed to participate in the rulemaking process and to provide feedback on the implementation of the ordinance for at least the first six months.
• The effective date of the legislation is November 1, 2013.

The Business Coalition’s Issues with the Final Legislation:

• The standard / burden of proof for showing a “legitimate business reason” is overburdensome and virtually impossible to achieve with an employer having to show it has a ‘good faith belief” that one of the following events will absolutely occur in the future:
• That the conduct underlying the charges or convictions “will have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held”; or
• the applicant or employee “will harm or cause injury to people, property or business assets;” and
• In determining whether there is a “legitimate business reason” for rejecting an applicant or terminating an employee, an employer must consider the seriousness of the charge or conviction, the number and types of convictions or pending charges, the date of the charges or convictions, verifiable information on rehabilitation, the duties of the position and the place and manner in which the position will be performed.
• The enforcement provisions give broad sweeping investigation powers to the SOCR, which can be time consuming and expensive, particularly where a hearing officer can assess attorney fees against an employer.
• Business’s compromise position was to allow an award of attorney fees after 3 or more violations and to allow an award of attorney fees against the Agency (SOCR) if it acted in an arbitrary and capricious manner (on the 3rd or subsequent violation of an employer).  If the attorney fee provision is abused, CM Harrell has promised to revisit that issue.
•  Washington is an at-will employment state, but this new Seattle ordinance limits an employer's ability to hire and fire at will. The ordinance provides new protections to persons with criminal arrest and/or conviction records that are not afforded to other applicants or employers.

Mona Smith, Attorney at Law and GSBA Board Member, has been invited by SOCR to serve on the Stakeholder Panel to develop appropriate administrative rules, technical assistance and outreach to implement the Jobs Assistance Legislation (CB 117796). This panel will monitor the implementation and enforcement of the legislation and make recommendations to the City Council. We want to thank Mona for leading GSBA's efforts on this issue and for her continued involvement in the rule-making and implementation process.