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Seattle Employers Beware: Use of Arrest and Conviction Records In Employment Decisions May Violate the City’s New Job Assistance Bill

Posted in Employee Privacy Rights, Labor Law, New Legislation and Regulations

By:  Lizbeth V. West, Esq.

On June 10, 2013, the Seattle City Council unanimously passed a new city ordinance called the “Job Assistance Bill.” The new ordinance applies to employers of all sizes, including temporary and staffing agencies.

Below are the main prohibitions and/or restrictions under the ordinance:

A.   No employer shall advertise, publicize, or implement any policy or practice that automatically or categorically excludes all individuals with any arrest or conviction record from any employment position that will be performed in whole or in substantial part (at least 50% of the time) within the City.

B.   An employer 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 to eliminate unqualified applicants.

C.   An arrest is not proof that a person has engaged in unlawful conduct. Employers shall not carry out a tangible adverse employment action solely based on an employee’s or applicant’s arrest record.

D.   Employers may inquire about the conduct related to an arrest record. Employers shall not carry out a tangible adverse employment action solely based on the conduct relating to an arrest unless the employer has a legitimate business reason for taking such action.

E.   Employers shall not carry out a tangible adverse employment action solely based on an employee’s or applicant’s criminal conviction record or pending criminal charge, unless the employer has a legitimate business reason for taking such action.

F.   Before taking any tangible adverse employment action solely based on an applicant’s or employee’s criminal conviction record, the conduct relating to an arrest record, or pending criminal charge, the employer shall identify to the applicant or employee the record(s) or information on which they are relying and give the applicant or employee a reasonable opportunity to explain or correct that information.

G.   Employers shall hold open a position for a minimum of two business days after notifying an applicant or employee that they will be making an adverse employment decision solely based on their criminal conviction record, the conduct relating to an arrest record, or pending charge in order to provide an applicant or employee a reasonable opportunity to respond, correct or explain that information. After two business days, employers may, but are not required, to hold open a position until a pending charge is resolved or adjudicated or questions about an applicant’s criminal conviction history or conduct relating to an arrest are resolved.

The law provides that it shall be a violation for an employer or any other person to: a) interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under the law; or b) retaliate against an employee or job applicant because the employee or applicant has exercised in good faith the right to: i) file a complaint with the Seattle Office for Civil Rights (the “Agency”) about any employer’s alleged violation of the law; ii) cooperate in the Agency’s investigation; or iii) oppose any policy, practice, or act that is unlawful under the new law. The new law does not create a private civil right of action for an individual to seek damages or remedies of any kind and the Agency shall have the authority to adopt regulations for enforcement of the law.

A full copy of the Job Assistance Bill can be obtained at: http://clerk.ci.seattle.wa.us