Fair Chance – Washington

 Ban-the Box Legislation

Fair Chance – Washington

h-3695.1-fair-chance-act

New legislation beginning to emerge around the country may initially seem counter-intuitive to CFEs. The new laws prohibits employers from asking an applicant about his/her criminal history on a job application or during initial screening and delays that inquiry until after an applicant is determined to be otherwise qualified for the job. There is something in us CFEs that wants to know all but it is becoming clear that many of those caught up in the criminal system have little chance of becoming contributing citizens once they are  branded as a criminal.

On November 3, 2015, President Obama signed a ban-the-box (aka “Fair Chance”) executive order addressed to federal agencies (referring to the box to check on an employment application affirming a criminal conviction). According to the National Employment Law Project there are more than 100 cities and counties around the country that have adopted ban-the box rules. Effective October 27, 2015, the New York City Human Right Law was amended by The Fair Chance Act.¹N.Y.C. Administrative Code §8-107(11-a) . Guidance which promises vigorous enforcement was published. ² http://www.nyc.gov/html/cchr/html/coverage/fair-chance-legalguidance.shtml In December of 2015, Portland, Oregon adopted a Fair Chance Law. Under their version of the law, employers are prohibited from inquiring about or even accessing an applicant’s criminal history from any other source before making a “conditional offer of employment.” This is defined as being any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of the offer.

There currently is a Ban-the-Box bill enrolled in the Washington Legislature (H-3695.1). It is a milder version of the New York and Portland laws. In its present form it has no private right of action and may not be construed to create a private right of action to seek damages or remedies of any kind. It is exclusively enforced by the state attorney general. It provides:

In exercising its powers, the attorney general’s office shall utilize a stepped enforcement approach, by first educating violators, then warning them, then taking legal, including administrative, action. Maximum penalties are as follows: A notice of violation and offer of agency assistance for the first violation; a monetary penalty of up to seven hundred fifty dollars for the second violation; and a monetary penalty of up to one thousand dollars for each subsequent violation.

Unlike other Fair Chance laws, the Washington bill does not carve out an exception for smaller businesses but has the other usual exceptions (e.g. child care and law enforcement).

It is sold as a taxpayer savings measure. By helping ex-offenders find productive employment, it reduces prison populations, reducing demand for public assistance, reducing crime, and increasing sales tax revenues. However, arguably it is so weak that it may have no effect. It prohibits the employer from excluding an applicant from an initial interview. It provides, “It is unlawful for an employer to advertise employment openings in a way that excludes people with a criminal record from applying. Advertising that states ‘no felons,’ ‘no criminal background,’ or otherwise conveying similar messages are prohibited”.  It does not prohibit an employer from excluding the applicant from the hiring opportunity after the initial interview, “. . . . nothing in this section prohibits  an employer from considering an applicant’s criminal record prior to making a hiring decision”.