Second Chance for Criminals – More Regulations for Employers?

The controversial “Second Chance” bill passed the Seattle City Council unanimously on June 10, 2013, and becomes an additional requirement employers must follow in Seattle’s ever restrictive, employee-friendly canon of ordinances.  Starting in November of this year, those who employ workers in Seattle will be limited in  requesting and using criminal records of their future and current employees.

Broad Scope

With few exceptions, the ordinance applies to all Seattle employers employing at least one person, as well as those employing workers who spend half their work time in Seattle. [1]  Although specific regulations have not yet been developed, the broad strokes of what the law will require of employers is clear:

• When advertising or taking applications for a job posting, employers are not permitted to request information regarding an applicant’s criminal record.
• Only after eliminating unqualified applicants for a position through initial screening may employers ask about a person’s criminal or arrest record.
• Employers may not take any adverse employment action against a current employee based solely on an arrest, but may inquire about the circumstances related to the arrest.
• Employers may not reject an applicant or discipline or discharge an employee based on conduct that led to an arrest, conviction, or pending charge without a “legitimate business reason.”

Impact on Hiring Practices

Returning to the hiring scenario, even after reviewing an applicant’s criminal record, an employer is still limited in what actions they may take.  One of the more controversial provisions of the ordinance forbids employers from rejecting an applicant solely based on a criminal record, unless the employer meets three conditions:

1. The employer must identify to the employee or job applicant the criminal record on which the decision has been made;
2. The job applicant must be given the opportunity to explain or correct the information on which an employer has based his or her decision (and the employer must hold the position open for two days to allow the applicant to do so); and
3. The employer must demonstrate a “legitimate business reason” for making the employment decision.

What is a “legitimate business reason”?

Whether the employer’s reason for making an employment decision (hiring, firing, demotion, etc.) on the basis of an employee’s or applicant’s criminal record, arrest, conviction, or pending charge is a “legitimate business reason” requires an individualized analysis.  In other words, one size does not fit all.   The ordinance states that a “legitimate business reason” exists where, based on the 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 factors including: the seriousness of the criminal conviction or charge, the number and types of convictions or charges, the time that has elapsed since the conviction or charge (excluding periods of incarceration), any information related to the applicant’s rehabilitation or good conduct, the duties and responsibilities of the position sought or held, and the place and manner in which the position will be performed.

Enforcement and Penalties

The ordinance does not create a private right of action for employees or applicants to directly sue employers for violation of the law.  Nevertheless, just as with Seattle’s new Sick & Safe Leave Law, the “Second-Chance” ordinance has teeth. The Seattle Office of Civil Rights (“SOCR”) has the authority to investigate complaints from job applicants who have been rejected from jobs on the basis of their criminal record or initiate enforcement action on its own. Assuming an employer cannot meet the three-part test above, or where the SOCR finds other violations of the law, a warning is given on the first offense. An employer can be fined up to $750 for a second offense, and up to $1,000 for subsequent offenses.  These fines are paid directly to the employee or applicant harmed by the employer’s violation.  In addition, the SOCR can also order that the employer pay the agency’s attorney’s fees in addition to any other monetary penalty.

Review Policies and Documents Now, and Confer with Counsel

The analyses required by the new ordinance, especially when determining if a legitimate business reason exists for taking an adverse employment action, are onerous and will take time and effort for most employers to adjust to.  Reviewing the ordinance now, and beginning to implement new hiring practices and other workplace policies in advance of its November 1, 2013 kick-off will put employers in a better position once the SOCR begins enforcement procedures.

If you have questions about this post, you may contact author Jennifer Faubion at jfaubion@cairncross.com.

[1] The ordinance does not apply to positions in law enforcement, policing, crime prevention, security, criminal justice, or private investigation services or those which may provide unsupervised access to children under sixteen years of age, developmentally disabled persons, or vulnerable adults.