Excerpted from a Forbes article by Alonzo Martinez
Washington employers may soon face some of the nation’s strictest limits on criminal background checks. House Bill 1747, if passed, will significantly expand the state’s Fair Chance Act, delaying when employers can conduct background checks, restricting how they consider criminal history in hiring decisions, and imposing steep financial penalties for noncompliance. Businesses that conduct background screening should be aware of these potential changes and assess how they may need to adjust hiring practices if the bill becomes law.
Since 2018, Washington has embraced fair chance hiring, prohibiting employers from inquiring about an applicant’s criminal record until they have determined that the applicant meets the basic qualifications for the position. HB 1747 pushes that boundary further, aligning Washington with jurisdictions such as California, New York City, and Philadelphia, where employers must wait until a conditional offer has been extended before assessing an applicant’s criminal record. For Washington employers, this change adds new compliance obligations and demands a more structured hiring process to avoid liability.
Delaying Background Checks Until After a Conditional Offer
A major shift under HB 1747 is the timing of criminal history inquiries. Employers would be prohibited from asking about criminal history or conducting a background check until after extending a conditional job offer. This goes beyond the current law, which allows employers to inquire about an applicant’s criminal record after confirming they meet basic job qualifications.
For many businesses, this means restructuring hiring workflows. Background screening, typically conducted in the early stages of hiring, would now occur only after an offer has been made. This change reflects a broader legislative trend designed to reduce barriers to employment for individuals with past convictions, while also increasing compliance risks for employers that fail to adhere to the new requirements.
Stricter Rules on Using Criminal Records in Hiring Decisions
While shifting the timing of background checks is a significant change, HB 1747 also redefines how employers may use criminal records in employment decisions. Under the bill, employers would be prohibited from taking adverse action—such as rescinding a job offer—based on an arrest record or juvenile conviction.
For adult conviction records, the law imposes new hurdles. Employers must now prove a legitimate business reason for making an adverse decision. This means employers must assess and document the specific impact of a conviction on the position before deciding to withdraw an offer. Factors in this assessment include:
- The severity of the offense,
- The time elapsed since the conviction, and
- Any evidence of rehabilitation, education, or work history.
Simply assuming that a conviction disqualifies a candidate is no longer enough. Employers must demonstrate how the conviction directly affects the candidate’s ability to perform the job and maintain documentation in case of legal scrutiny.
A Mandatory Waiting Period and Written Justifications
Employers will no longer be able to make immediate hiring decisions based on criminal history. HB 1747 introduces a mandatory waiting period before finalizing an adverse hiring decision. Once a candidate is informed that a conviction may impact their employment, the employer must hold the position open for at least two business days, allowing the applicant to respond, clarify, or dispute the record.
If the employer proceeds with an adverse decision, they must provide a written explanation outlining:
- The specific conviction considered,
- The reasoning behind the decision, and
- The mitigating factors reviewed in the assessment.
For employers, this creates an additional compliance step that requires clear documentation and internal review processes before rejecting an applicant based on criminal history. Failure to adhere to these requirements could lead to fines and legal challenges.
New Protections for Current Employees
HB 1747 does not just apply to job applicants. For the first time, Washington employers would be prohibited from taking adverse action against current employees based on an arrest or juvenile conviction record. This means an employer could not fire, demote, or discipline an employee simply because of an arrest that did not lead to a conviction.
When it comes to adult convictions, employers still have some discretion, but only if they can demonstrate a job-related reason for taking action. This expansion of protections makes it more difficult for employers to use criminal history as a basis for employment decisions, even after an individual has been hired.
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