Proposed Seattle Ordinance Would Limit Employers' Right to Investigate Applicants' Criminal Backgrounds
Seattle City Councilman Bruce Harrell has introduced a new ordinance that would limit employers’ use of criminal background checks during the hiring process. The measure aims to reduce criminal recidivism by lowering unemployment among felons. Although the City Council is unlikely to consider the measure until 2013, it has already generated significant attention.
The ordinance would impose two limitations on all Seattle employers, public and private. First, it would prohibit employers from requesting a criminal background check until after giving “a conditional offer of employment.” This means employers could not ask about criminal convictions or pending charges on job applications; even a checkbox asking about the applicant’s criminal history would be unacceptable.
Second, the ordinance would prevent employers from refusing to hire an applicant or disadvantaging a current employee based on arrest or conviction records and pending charges, unless there is a “direct relationship” between the criminal history and the position. The elements of a “direct relationship” are not yet fully defined. However, the ordinance suggests there may be a direct relationship if the “nature of the criminal conduct...has a direct bearing or connection” to the position sought or held, or if it is “reasonably foreseeable” that the criminal; activity may result in harm to persons or property, including the business’s reputation.
The ordinance does not apply to employers who are permitted or required by federal law to obtain background checks before making offers. It also does not apply to positions that provide services to children, the mentally ill, or other vulnerable adults, or to those involved in law enforcement, crime prevention, security, or private investigation. And, the measure allows employers to exclude an applicant “whose criminal conviction record includes a conviction for... embezzlement, theft, fraud, or any other financial crime from employment in a position involving access to money, financial information, or personal identifying information of customers, employees, or members of the public.”
Many of the provisions in the proposed ordinance duplicate requirements under the federal Fair Credit Reporting Act (“FCRA”) and Washington’s FCRA. FCRA regulations govern the process for obtaining reports from third parties for a fee, including reports of credit ratings, criminal background checks, employment verifications, and driving records.
The ordinance also overlaps with federal and state discrimination laws restricting employers’ exclusion of applicants with criminal backgrounds. At the federal level, these restrictions are found in regulations issued by the Equal Employment Opportunity Commission (“EEOC”) and are based on EEOC interpretation of Title VII of the Civil Rights Act of 1964. Like the Seattle ordinance, the EEOC requires that employers show that exclusion of applicants with criminal backgrounds is job-related, consistent with business necessity, and that no less discriminatory alternative practice would serve the same ends.
Washington state laws similarly overlap with the ordinance and federal law. In addition to the state FCRA, the Washington Law Against Discrimination, as interpreted by the Washington Human Rights Commission, prohibits employment practices that have the effect of discriminating against minorities. Employers may only consider convictions if they are less than 10 years old and would adversely affect job performance.
As the Council reviews the ordinance, citizens and businesses will have an opportunity to express their views by writing to the Council or appearing in person at hearings. Check back for updates on this process and information about the ordinance.