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Seattle Bans the Box and More

By Michael Klazema on 7/26/2013

The City of Seattle has had a policy of not asking prospective employees about prior arrests or convictions on job applications, but this ordinance applies to private employers. It applies to all private employers with one or more employees, or designees, or any person acting in the interest of the employer. The ordinance also applies to job placement, referral, and employment agencies.

The term “employee” under the Job Assistance Bill includes any individual who performs services for an employer when the physical location of the services is conducted within the City at least fifty percent of the time. It does not include an individual whose job duties include law enforcement, policing, crime prevention, security, criminal justice, or private investigation services. Nor does it include individuals who will or may have unsupervised access to children younger than sixteen years of age, developmentally disabled, or vulnerable adults.

Seattle’s Job Assistance Bill places several restrictions or bans on employers when dealing with individual who have an arrest or conviction record. Employers may not advertise, publicize, or implement any policy or practice that automatically excludes an individual from employment. Employers are not permitted to take any adverse employment action based solely on an employee’s or applicant’s arrest record. However, an inquiry may be made into the conduct related to an arrest record and adverse action may be taken based on that conduct, if there is a legitimate business reason. Adverse action based on an individual’s criminal conviction record or pending criminal charge is also prohibited without a legitimate business reason.

Employers must abide by certain requirements if they decide to take adverse employment action under the Act. The employer must disclose the information it relied on before taking adverse action, and give the individual a “reasonable opportunity” to explain or correct the information. The position must be held open for a minimum of two business days after notifying an applicant or employee of the adverse employment decision.  This gives the employee or applicant at least two days in which to respond, correct or explain the information.

The Bill defines “legitimate business reason” as a good faith belief that the nature of the criminal conduct resulting in the conviction or pending criminal charge will have either a negative impact on the individual’s fitness to perform the position, or will cause harm or injury to people, property, business reputation or business assets. A legitimate business reason requires an employer to consider the following factors:

  1. The seriousness of the conviction or pending charge;
  2. The number and types of convictions or pending charges;
  3. The time that has elapsed, excluding periods of incarceration;
  4. Any information related to the individual’s rehabilitation or good conduct;
  5. The specific duties and responsibilities of the position; and
  6. The place and manner in which the position will be performed.

The ordinance does not create a private cause of action. Instead, it provides for administrative enforcement. The Seattle Office of Civil Rights will issue a notice of infraction for the first offense and offer to assist the employer. After that, the Agency may assess a monetary penalty of up to $750 payable to the charging party for a second violation, and up to $1,000 for each subsequent violation.

The bill goes into effect November 1, 2013, and is accessible here for review:http://www.seattle.gov/news/newsdetail_council.asp?ID=13721

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