Governor Ferguson has signed HB 1747, which amends Washington’s Fair Chance Act and further restricts employers’ use of criminal records in making employment decisions. As we reported in 2018, Washington’s “Fair Chance Act” prohibits most employers from asking about criminal history before deciding whether an applicant meets the basic criteria for the position. The new bill significantly expands those protections. Effective July 1, 2026 (or January 1, 2027, for employers with fewer than 15 employees) employers may not:
- Ask about an applicant’s criminal background until a conditional offer of employment has been made;
- Advertise jobs in a way that excludes people with criminal records;
- Have a policy or practice automatically excluding someone with a criminal record, or reject someone for not disclosing their criminal record prior to a conditional offer;
- Take tangible adverse action based on a juvenile conviction or an arrest record (unless the matter of the arrest is still pending);
- Take tangible adverse action based on an adult conviction record unless there is a “legitimate business reason”; or
- Retaliate against individuals who complain about violations of this law.
A “legitimate business reason” is limited to situations where the employer believes that the nature of the criminal conduct will negatively impact the person’s fitness or ability to perform the position, or harm the people, property, business reputation, or assets of the employer. In evaluating whether a legitimate business reason exists, the employer must document their consideration of:
- The conduct underlying the conviction, including the seriousness of the conduct, the number and types of convictions, and the time since the conviction;
- The individual, including verifiable information related to rehabilitation, good conduct, work experience, education, and training; and
- The position, including the specific duties and responsibilities, and the place and manner in which the position will be performed.
Documentation Required for “Legitimate Business Reason”
Before taking an adverse employment action based on a conviction record, employers must engage in a multi-step process similar to the process required by the federal Fair Credit Reporting Act (FCRA). First the employer must notify the individual and identify the record(s) that they relied on in assessing their legitimate business reason. Then, they must allow the individual at least two business days to respond and either correct, explain, or provide evidence of rehabilitation, good conduct, work experience, education or training. If, after consideration of the evidence, the employer makes an adverse employment decision, they must provide the individual with a written decision including specific documentation on their reasoning and assessment of each of the relevant factors including the impact of the conviction on the position, consideration of the individual’s rehabilitation, good conduct, work experience, education, and training.
Limited Exceptions and Enforcement Authority
There are exceptions to the requirements for positions where: (1) the individual will have unsupervised access to children or specifically defined vulnerable adults; (2) the law permits or requires a criminal background check, such as financial institutions and law enforcement agencies; and (3) work will be performed under a federal contract that specifically prohibits people with criminal records from working under that contract. The Attorney General has the authority to enforce this law and assess fines ranging from $1,500 – $15,000 for violations.
Tips: Vigilant will be creating resources to assist Washington employers to comply with these new requirements. Watch our newsletter for additional materials prior to the 2026 effective date. In the meantime, for more information on current requirements and the federal FCRA, see our Legal Guide, Background Checks: Simple Third-Party Reports.