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Another Review of Seattle’s Ban-the-Box Ordinance

By Michael Klazema on 6/27/2014

Seattle’s ban-the-box ordinance applies to any person who has one or more employees, its designee, or any person acting in the interest of the employer. It also applies to job placement, referral, and employment agencies. It applies to any employee who performs 50% or more of their employment services in Seattle. Exceptions are made for the federal, state, county and local governments other than the City. Also, the law does not apply to law enforcement, security or criminal justice personnel, private investigation services, or persons with unsupervised access to developmentally disabled persons, vulnerable adults, or children under sixteen years of age.

Seattle Code 14.17 restricts employers from advertising, publicizing, or implementing any policy or practice that automatically or categorically excludes all individuals with any arrest or conviction records from employment. It also restricts an employer from obtaining an applicant’s criminal history information before the initial screening of the applicant’s qualifications.

Together, the law and the administrative rules place many requirements on employers when it considers an applicant with a criminal history or a pending criminal charge.

First, employers must consider whether a legitimate business reason exists in which the employer believes in good faith that an applicant’s criminal conduct underlying a conviction or pending criminal charge either will have a negative impact on the individual’s fitness or ability to perform the job, or will cause harm or injury to people, property, business reputation, or business assets.

Second, employers must demonstrate consideration of the following in deciding whether a legitimate business reason exists:

  1. Whether the conduct or pending criminal charge will have a negative impact on the employee’s or applicant’s fitness or ability to perform the position, or cause harm or injury to people, property, or business assets;
  2. The seriousness of the underlying criminal convictions or pending criminal charges;
  3. The number and types of convictions or pending criminal charges;
  4. The time that has elapsed since the conviction or pending criminal charge, excluding period of incarceration;
  5. Any verifiable information related to the individual’s rehabilitation or good conduct, provided by the individual;
  6. The specific duties and responsibilities of the position sought or held; and
  7. The place and manner in which the position will be performed.

Third, the employer must inform the applicant or employee of the records or information that it relied on before it takes an adverse employment action based solely on the individual’s criminal conviction or conduct relating to an arrest record or pending criminal charge. This notice must be provided in a reasonable manner most likely to reach the individual in the shortest amount of time. The position must be held open for at least two business days after notifying the individual of the employer’s intent to take adverse employment action.

Fourth, employers are required to give the applicant or employee reasonable opportunity to respond, correct, or explain the records or information. This requirement is demonstrated when the employer has:

  1. Informed the applicant or employee of the records or information that it relies on, including the entire results of the background check;
  2. Explained to the applicant on which part(s) of the records or information it relies on;
  3. Given the applicant or employee a fair chance to review the records or information;
  4. Provided the applicant or employee with the name, address, and telephone number of the outside agency that supplied the report;
  5. Provided notice to the applicant or employee of the individual’s right to dispute the accuracy or completeness of any records or information the agency furnished;
  6. Given the applicant or employee an opportunity to provide accurate records or information if the applicant or employee responded that the records or information are inaccurate; and
  7. Given the applicant or employee an opportunity to provide an explanation as to the individual record or information on which the employer is relying as well as verifiable information related to the individual’s rehabilitation or good conduct. If the employer receives information from the individual that is inconsistent with the information in the criminal history report, the employer must give the individual additional opportunity to correct errors by following the process outlined here.

Seattle’s ban-the-box law follows and expands on the federal requirements outlined in the Equal Employment Opportunity Commission’s Guidelines on considering arrest and conviction records issued on April 25, 2012. Employers are required to demonstrate their compliance with the ordinance and regulations, and engage in an individualize assessment before taking adverse employment action against individuals with criminal histories.

Seattle Municipal Code 14.17: http://clerk.ci.seattle.wa.us/~public/toc/14-17.htm

Seattle Office of Civil Rights Rules, Chapter 80: http://www.seattle.gov/civilrights/documents/
seattlejobassistanceordinance_administrativerules_final.pdf

backgroundchecks.com Compliance Update dated July 26, 2013: http://www.backgroundbiz.com/compliance/complianceupdate_07262013.html


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