New Rules Related to Job Applicants and Employees with Criminal Records Take Effect July 1, 2026

The Fair Chance Act, passed by the Washington legislature in 2018, created new rules related to the collection and use of criminal history in the hiring process. The law, also known as the “Ban the Box” law, prohibited employers from asking job applicants about their criminal history or doing background checks until the employer had determined the applicant was “otherwise qualified” for the position. The state law also prohibited employers from advertising job openings in a way that excluded people with criminal records from applying, such as “no felons,” “no criminal background,” or other similar messages.

In 2025, the legislature passed HB1747 (here) which expanded Washington’s Fair Chance Act in several important ways. These provisions take effect July 1, 2026 for employers with fifteen (15) or more employees, and January 1, 2027 for employers with fewer than 15 employees:

• Conditional offer of employment required: An employer may not make any inquiry, or obtain any information about an applicant’s criminal record, or conduct any criminal background check until after the employer has determined the applicant is otherwise qualified for the position and makes an offer of employment conditioned on obtaining the applicant’s criminal record. (Note: The state’s new language aligns with Spokane’s Ban the Box ordinance which has aways required the employer to make a conditional offer of employment before conducting criminal record inquiries.)
• Arrests and Juvenile Conviction Records cannot be considered: An employer may not take a “tangible adverse employment action” based on an applicant or employee’s arrest record (except an adult arrest in which the individual is out on bail or released on personal recognizance pending trial) or juvenile conviction record. “Tangible adverse employment action” means rejecting an otherwise qualified job applicant, or terminating, suspending, disciplining, demoting or denying a promotion to an employee.
• Legitimate Business Reason required: An employer may not take a “tangible adverse employment action” based solely on an adult conviction record, unless the employer has a “legitimate business reason” for doing so. “Legitimate business reason” means that, based on information known to the employer at the time of the decision, the employer believes the nature of the criminal conduct will have a negative impact on the candidate’s fitness or ability to perform the position sought or held; or the nature of the criminal conduct is such that it will harm or injure people, property, business reputation or business assets, and the employer has conducted and documented an individualized assessment as required by RCW 49.94.010. Although the statute does not require the employer to use any particular form to document this assessment, this sample form can serve as a starting point for employers.
• Pre-Decision Requirement: Before taking a “tangible adverse employment action” (such as withdrawing an applicant’s conditional job offer, or disciplining, demoting, or denying a promotion to an employee), the employer must notify the applicant or employee and identify the record on which the employer relies to assess its “legitimate business reason” for the action. The employer must then hold the position open for at least two business days to provide the applicant or employee an opportunity to correct or explain the record or provide the employer with information regarding the individual’s “rehabilitation, good conduct, work experience, education, and training.”
• Post-Decision Requirement: If, after providing the individual the opportunity to correct or explain the record, the employer proceeds with a tangible adverse employment action, the employer must provide the applicant or employee with a written decision, “including specific documentation as to [the employer’s] 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 [individual’s] rehabilitation, good conduct, work experience, education, and training.”
• Voluntary Disclosure by Applicant: If an applicant voluntarily discloses information about his or her criminal record during an interview, the employer must immediately inform the applicant, in writing, about their rights under the Fair Chance Act and provide the applicant with the Attorney General’s Washington Fair Chance Act Guide for Employers and Job Applicants. We suggest employers have printed copies of the statutory rights found at RCW 49.94.010 (here) and the Fair Chance Act guide (here) available at each interview, to promptly respond to an applicant’s voluntary disclosure.

There are several exceptions to the Fair Chance Act, which may exempt certain persons or positions from the act’s requirements, including persons who have or may have unsupervised access to children and vulnerable persons; employers who are expressly permitted or required by state or federal law to inquire into and rely on information about an applicant or employee’s criminal record for employment purposes; law enforcement and criminal justice agency employees; non-employee volunteers; and positions entailing work under federal contracts that specifically prohibit people with criminal records from working under that contract. See RCW 49.94.010(7) for a list of exemptions (here).