Washington Expands Protections for Applicants and Employees Under Its Fair Chance Act

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Karen Edginton Milner

June 2, 2025

Washington has amended and expanded its Fair Chance Act, the intent of which is to ensure that employment decisions are based on an applicant’s qualifications rather than solely on their criminal records.

Under the amended statute (which goes into effect on July 1, 2026 for employers with 15 or more employees, and on January 1, 2027 for employers with fewer than 15 employees), an employer may not obtain information about an applicant’s criminal record until after the employer makes an offer of employment conditioned on obtaining the criminal record.  Nor may an employer implement a policy or practice that automatically excludes an applicant with a criminal record from any position, or reject an applicant for failure to disclose a criminal record prior to the employee receiving a conditional offer of employment.  At present, an employer in Washington is permitted to obtain information about an applicant’s criminal record once it makes an initial determination that the applicant is qualified for the position but prior to making an offer of employment.

The amended statute provides that an employer may not take “tangible adverse employment actions” (defined as a decision to reject an otherwise qualified applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee) in the following situations:

• Based on an arrest record or juvenile conviction record. This prohibition does not apply to an adult arrest in which a person is out on bail or released on their own recognizance pending trial.
• Solely based on an adult conviction record unless the employer has a legitimate business reason for taking such action.
  • Before taking an adverse employment action, the employer must notify the applicant/employee, and identify the record on which the employer is relying for purposes of assessing its legitimate business reason.
  • The employer must hold the position open for at least two business days to provide the applicant/employee with a reasonable opportunity to correct or explain the record or provide information on their rehabilitation, good conduct, work experience, education, and training.
  • If the employer makes a tangible adverse employment decision following the reasonable opportunity, it must provide the applicant/employee with a written decision, including specific documentation for its reasoning and assessment of each of the relevant factors, including the impact of the conviction on the position or business operations, and its consideration of the applicant’s/employee’s rehabilitation, good conduct, work experience, education, and training.
• Based on an employee (or a person acting on their behalf) making a good faith report to the employer, the attorney general, a labor organization, or others of a violation or suspected violation of these provisions of the statute, or otherwise informing others of its requirements.

The amendment adds a new exclusion from the above-referenced requirements, i.e., they do not apply where the employment position entails work under a federal contract that specifically prohibits those with criminal records from working under that contract.

The amendment specifies that it does not prohibit an employer from accurately disclosing to an applicant that the position is subject to a background check after a conditional offer of employment, or prohibit an applicant from voluntarily disclosing (without solicitation by the employer) information about the applicant’s criminal record during an interview.  However, if an employer or an applicant makes such a disclosure, the employer must immediately provide the applicant with the attorney general’s Washington Fair Chance Act guide, and inform the applicant in writing of the requirements of certain protections afforded them under the statute.

Enforcement/Penalties
The state attorney general‘s office is tasked with enforcing this law.  Its powers of enforcement include the authority to pursue administrative sanctions or a lawsuit for penalties, costs, and attorney’s fees. The law was amended to note that, for purposes of administrative sanctions, the attorney general‘s office may waive penalties for first time or de minimis violations and instead provide education and a warning to deter future noncompliance.  However, the attorney general‘s office may impose administrative sanctions and pursue appropriate legal action for second and subsequent violations.  The law was also amended to clarify the maximum monetary penalties for administrative sanctions, and to state that monetary penalties must be imposed per aggrieved job applicant, employee, or party for each violation.  The penalty is payable to the job applicant, employee, or other aggrieved party.  If there is no identifiable job applicant, employee, or aggrieved person, the penalty is retained by the attorney general.  Additionally, the attorney general may pursue legal action to obtain unpaid wages, unpaid administrative penalties, damages, reasonable attorney’s fees, and costs.

Compliance
Prior to the relevant deadline, employers should familiarize themselves with the amendment, and review all aspects of their recruitment, interview, and hiring process to ensure compliance, including training personnel involved in those processes.

The author of this article, Karen Edginton Milner, is a member of the Bars of Louisiana and Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Louisiana, Pennsylvania, Washington, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.