Sweeping Amendments Impose New Obligations on Employers Conducting Criminal Background Checks in Washington Starting 1 July 2026

Washington state has significantly expanded its Fair Chance Act through legislation enacted during the 2025 legislative session (EHB 1747), which is now codified at RCW 49.94 (Amended Fair Chance Act). Signed by Governor Bob Ferguson, the Amended Fair Chance Act imposes substantially more demanding requirements on Washington employers when inquiring about criminal history, conducting criminal background checks, and making employment decisions based on criminal history. 

The new requirements take effect 1 July 2026 for employers with 15 or more employees and 1 January 2027 for employers with fewer than 15 employees. 

Background: Washington’s Original Fair Chance Act (2018)

In 2018, Washington enacted the original Fair Chance Act, which is commonly known as the “ban the box” law. The Fair Chance Act prohibited employers from inquiring into or conducting criminal background checks on applicants until the employer had determined that the applicant was “otherwise qualified” for the position. The 2018 law also banned job postings that categorically excluded applicants with criminal histories. Those foundational provisions remain in effect and are now supplemented by the 2025 amendments discussed below.

Employers with employees in Seattle have been subject to Seattle’s Fair Chance Employment Ordinance (Seattle Ordinance) since 2013, which already imposed restrictive rules regarding the use of criminal records in employment decisions. The Amended Fair Chance Act aligns Washington’s statewide requirements more closely with the Seattle Ordinance and extends heightened protections to the entire state.

Key Changes Under Washington’s Amended Fair Chance Act

Timing of Background Checks: Conditional Offer Required First

Under the Amended Fair Chance Act, Washington employers are prohibited from inquiring into or receiving information about an applicant’s criminal history or conducting a criminal history background check on an applicant until after the employer has made a conditional offer of employment. It also expressly prohibits:

• Any policy or practice that automatically or categorically excludes individuals with a criminal record from any employment position; and
• Rejecting an applicant for failure to disclose a criminal record prior to receiving a conditional offer of employment.

Arrest Records and Juvenile Conviction Records: Absolute Bar on Adverse Action

Employers are now strictly prohibited from taking any tangible adverse employment action (defined as rejecting an otherwise qualified applicant, or terminating, suspending, disciplining, demoting, or denying a promotion to an employee) based on an applicant’s or employee’s (a) arrest record; or (b) juvenile conviction record.

Exception

The prohibition on considering arrest records does not apply to an adult arrest in which the individual is out on bail or released on their own personal recognizance pending trial.

Adult Conviction Records: “Legitimate Business Reason” Standard

Washington employers may not take a tangible adverse employment action solely based on an applicant’s or employee’s adult conviction record unless the employer can establish a “legitimate business reason” for doing so. 

The term “adult conviction record” is defined broadly to encompass not only criminal convictions themselves, but also any record of or information related to a conviction or other finding adverse to the subject, including citations, arrest records, certain types of dismissals (i.e., on the basis of insanity or incompetency), and probable cause statements associated with the underlying conduct leading to the conviction. As a note, an arrest record alone unrelated to a conviction cannot be the basis of an adverse employment action.

A “legitimate business reason” exists when the employer believes in good faith that the nature of the criminal conduct underlying the adult conviction record will:

• Have a negative impact on the applicant’s or employee’s fitness or ability to perform the position sought or held; or
• Harm or cause injury to people, property, business reputation, or business assets.

To establish a legitimate business reason under prong (b), employers must consider and document the following factors:

1. The seriousness of the conduct underlying the adult conviction record;
2. The number and types of convictions;
3. The time that has elapsed since the conviction, excluding periods of incarceration;
4. Any verifiable information related to the individual’s rehabilitation, good conduct, work experience, education, and training, as provided by the individual;
5. The specific duties and responsibilities of the position sought or held; and
6. The place and manner in which the position will be performed.

This individualized assessment framework is similar in structure to the Equal Employment Opportunity Commission’s guidance under Title VII of the Civil Rights Act of 1964 (Title VII) regarding the use of criminal history in employment decisions, but it is now a statutory mandate under Washington law.

Mandatory Predecision and Postdecision Notice Requirements

Washington employers contemplating an adverse employment action based on an adult conviction record must follow a two-step notice process:

Step 1: Predecision Notice

Before carrying out any adverse action, the employer must:

• Notify the applicant or employee and identify the specific record on which the employer is relying; and
• Hold the position open for a minimum of two business days to provide the individual a reasonable opportunity to correct or explain the record or to provide information regarding their rehabilitation, good conduct, work experience, education, and training (*Please note the federal Fair Credit Reporting Act (FCRA) generally requires a five-business-day pre-adverse action notice).

Step 2: Postdecision Written Notice

If the employer proceeds with the adverse action after the waiting period, it must provide the applicant or employee with a written decision that includes:

• Specific documentation of the employer’s reasoning;
• An assessment of each of the relevant individualized factors described above;
• The impact of the conviction on the position or business operations; and
• The employer’s consideration of any information the individual provided in response to the predecision notice.

(*Please note that FCRA similarly requires a written final adverse action notice after its required five-business-day period.)

New Disclosure Obligation Triggered by Background Check Notification

The Amended Fair Chance Act adds a novel disclosure requirement not widely seen in other jurisdictions. If an employer informs an applicant that the position will be subject to a postoffer background check, the employer must immediately:

• Provide the applicant with a written summary of certain key requirements under RCW 49.94.010; and
• Provide the applicant with a copy of the attorney general’s Washington Fair Chance Act Guide for Employers and Job Applicants, available online at https://www.atg.wa.gov/fair-chance-act.

Importantly, the same disclosures are required if an applicant voluntarily discloses information about their criminal history during a job interview, even if the employer did not solicit that information. Employers who routinely include language in offer letters, applications, or onboarding materials indicating that a background check will be conducted should ensure that the required disclosures are provided simultaneously with any such communication.

Antiretaliation Protection

The Amended Fair Chance Act prohibits employers from taking any tangible adverse employment action against an employee because that employee—or a person acting on the employee’s behalf—makes a good faith report (oral or written) to the employer, the attorney general, a labor organization, or others regarding a violation or suspected violation of the act, or otherwise informs others of the act’s requirements.

Exemptions

The Amended Fair Chance Act does not apply to:

• Employers hiring individuals who will or may have unsupervised access to children under the age of 18, vulnerable adults (as defined in Chapter 74.34 RCW), or vulnerable persons (as defined in RCW 9.96A.060);
• Employers expressly permitted or required under federal or state law to inquire into, consider, or rely on criminal record information for employment purposes (including certain financial institutions);
• Law-enforcement agencies and criminal-justice agencies as defined under Washington law;
• Employers seeking nonemployee volunteers;
• Entities required to comply with the rules or regulations of a self-regulatory organization under Section 3(a)(26) of the Securities Exchange Act of 1934; and
• Employers with respect to positions under a federal contract that specifically prohibits individuals with criminal records from working under that contract.

Enforcement and Penalties

The Washington State Attorney General’s Office is solely responsible for enforcing the Amended Fair Chance Act. There is no private right of action, meaning individuals cannot sue employers directly under the statute. However, the Amended Fair Chance Act substantially increases the monetary penalties that the attorney general may impose, as follows:

In addition to monetary penalties, the attorney general may pursue legal action to obtain unpaid wages, damages, and reasonable lawyers’ fees and costs. The attorney general also has authority to issue civil investigative demands for documents, interrogatory responses, and oral testimony.

Relationship to Other Laws

Employers must navigate the Amended Fair Chance Act in conjunction with other applicable legal frameworks, such as the FCRA, Title VII, the Seattle Ordinance, and the Washington Fair Credit Reporting Act. Because each of these laws impose their own requirements to applicable employers, it is important to consider the overlays and implications of each.

Recommended Steps for Employers

In light of these significant changes, Washington employers should take the following steps before their applicable effective date:

1. Audit Hiring Workflows and Application Materials

Review all job applications, online portals, and interview scripts to ensure that criminal history questions are not presented prior to the issuance of a conditional offer of employment and remove any blanket disqualification language from job postings (unless legally authorized to be included).

2. Revise Conditional Offer Letters

If a background check is warranted, ensure that employment offers clearly condition employment on the results of the background check and are issued before any background check is initiated.

3. Update Background Check Disclosure and Authorization Forms

Revise forms to comply with the Amended Fair Chance Act and the FCRA. If offer letters or onboarding materials disclose that a background check will be conducted, ensure the required attorney general guide and written summary of the law are provided simultaneously.

4. Develop an Individualized Assessment Process

Create a process for evaluating criminal history results that incorporates all six statutory factors, requires written documentation of the assessment, and supports the legitimate business reason determination.

5. Revise Pre-Adverse and Post-Adverse Action Notices

Update pre-adverse action notices to identify the specific record being relied upon, incorporate the two-business-day hold period,¹ and invite the applicant or employee to provide mitigating information where warranted. Update post-decision written notices to include the required reasoning, factor-by-factor assessment, and individualized documentation

6. Train Human Resources Personnel and Hiring Managers

Ensure that all individuals involved in the hiring process understand the new restrictions and the steps required before any adverse action may be taken.

7. Review Agreements with Third-Party Background Check Vendors

Confirm that vendors understand and will comply with the Amended Fair Chance Act’s requirements, and update vendor agreements as necessary.

The 2025 amendments to Washington’s Fair Chance Act represent one of the most significant expansions of criminal background check restrictions in the state’s history. With the 1 July 2026 effective date rapidly approaching, employers with 15 or more employees should begin compliance efforts immediately. 

For more information, please contact a member of our Labor, Employment, and Workplace Safety practice who routinely handle background check matters across the nation.