Employer Rights and Responsibilities Under New Seattle Ordinance Regarding Criminal Records

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The Seattle City Council has unanimously passed Bill 117796 aka Job Assistance Bill regarding employment actions as to persons with criminal records. The Council sent the Bill to the Mayor for approval. Seattle based employers need to understand the impacts and responsibilities under the Bill.

  1. Does it apply to my business? The ordinance applies to your business IF
    1. The employment position in question is performed 50% or more of the time in the City of Seattle; and,
    2. You employ one or more persons; and,
    3. You are not a government body (other than the City of Seattle).
  1. Are some jobs exempted? Yes, positions that entail any of the following job duties are exempted:
    1. Law enforcement
    2. Policing
    3. Crime prevention
    4. Security
    5. Criminal justice
    6. Private investigation
      access to children under 16, developmentally disabled individuals, or vulnerable adults.
  1. Can I do any background checking before hiring?
    After an initial screening of unqualified candidates for a position, you may inquire about criminal history and perform a background check.
  1. Can I refuse to hire or can I fire a person with a criminal background?
    No, not simply on the basis of a record or of an arrest. There must be a “legitimate business reason” to take this action.
  1. What is a “legitimate business reason”?
    “Legitimate business reason” shall exist where, based on information known to the employer at the time the employment decision is made, the employer
    believes in good faith that the nature of the criminal conduct underlying the conviction or the pending criminal charge either:

1. Will have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held, or
2. Will harm or cause injury to people, property, business reputation, or business assets, and the employer has considered the following factors:

a. the seriousness of the underlying criminal conviction or pending criminal charge, and;
b. the number and types of convictions or pending criminal charges, and;
c. the time that has elapsed since the conviction or pending criminal charge, excluding periods of incarceration, and;
d. any verifiable information related to the individual’s rehabilitation or good conduct, provided by the individual, and;
e. the specific duties and responsibilities of the position sought or held, and;
f. the place and manner in which the position will be performed.

The employer must give the applicant/employee notice of the information relied upon for such an adverse action and give the applicant/employee reasonable opportunity to respond. This includes keeping a job position open for at least two days to give the reasonable opportunity to respond.

  1. What will I need to do?
    1. Eliminate any screening for criminal background in initial applications.
    2. Revise or eliminate any policies that allow a tangible adverse employment action, such as refusal to hire, or firing based on criminal background
    3. Review job positions for adequate job descriptions so that you can perform an adequate “legitimate business analysis” when and if necessary.

Private employment discrimination lawsuits are not currently authorized as remedies under the ordinance.

If approved by the Mayor, the ordinance will go into effect 30 days after that approval.

Keep checking www.helsell.com for further developments on this ordinance.

About the Authors

Karen Kalzer

Ms. Kalzer practices employment and education law with an emphasis on defending complex litigation for communities of faith, non-profits, schools and private employers.

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