New Restrictions on Performing Criminal Background Checks Take Effect in Washington

As of July 1, 2026, Washington employers are subject to new restrictions when performing criminal background checks.  The new restrictions currently only apply to employers with 15 or more employees, but will expand to all employers on July 1, 2027.  

Under new amendments to the Washington Fair Chance Act, employers are prohibited from inquiring about an applicant’s criminal record until “the employer initially determines that the applicant is otherwise qualified for the position and makes an offer of employment.” RCW 49.94.010(1) (emphasis added).

In addition, employers are limited with what they can do with the results of a criminal background check: employers cannot “automatically or categorically” exclude applicants with a criminal record from any employment position. RCW 49.94.010(3). Instead, employers can only exclude applicants based on their adult conviction record when the employer has a “legitimate business reason” to do so. RCW 49.94.010(5)(a).

In order to exclude an applicant based on their adult conviction record, the employer must notify the applicant of the adverse action and identify the specific record on which the employer relied in determining that the adverse action was based on a legitimate business reason. RCW 49.94.010(5)(b). The employer must then provide the applicant two business days to address the record. Id. If after reviewing the applicant’s response, the employer still determines there is a legitimate business reason for the adverse action, it must provide the applicant with a written decision, specific supporting documentation, and its assessment of each of the relevant factors, “including the impact of the conviction on the position or business operations[] and its consideration of the applicant’s or employee’s rehabilitation, good conduct, work experience, education, and training.” 49.94.010(5)(c).

Finally, employers cannot, at any point in the process, exclude an applicant based on their arrest record or juvenile conviction record. RCW 49.94.010(4).

If you have questions about these changes or their impacts on your hiring practices, Seyfarth Shaw’s Seattle office is available and happy to help.