Summit Law Blog

Effective July 1, 2026, for employers with 15+ employees, and January 1, 2027, for those under the 15-employee threshold. These new restrictions and requirements apply to Washington-based positions and employees. If you have not updated your hiring and other processes to comply with the statutory amendments, now is the time.

Washington State’s Fair Chance Act, commonly known as the “Ban the Box” law, was amended in the 2025 legislative session to significantly expand protections for applicants and employees. As originally enacted, the primary focus of the law was on timing: employers were restricted from considering criminal history until after an applicant was deemed otherwise qualified.  As amended, the law now not only further restricts timing, but also restricts what and how criminal history can be considered, requires employers to document reliance on criminal history information, and expands the reach of protections to current employees.  Employer size affects your deadline for compliance, not whether you’re covered. Every employer with Washington-based employees is subject to these requirements, subject to limited exceptions.

Key Takeaways from Fair Chance Act Amendments

What Changed on July 1, 2026

Timing: Under the amended Fair Chance Act (FCA), EHB 1747, covered employers may not seek information about an applicant’s criminal record, including via a criminal background check, until the employer has made a conditional offer of employment to the applicant. The law also prohibits employers from rejecting an applicant for failing to disclose a criminal record prior to receiving a conditional offer.

Job Advertisements: The updated FCA continues to prohibit job postings that include language signaling that people with criminal records should not apply (e.g., “no felons” or similar language).  However, the amendments clarify that a posting may indicate that a background check will be required following a conditional offer, as long as the employer also provides required notifications regarding FCA protections.

Categorical Exclusions: Any policy or practice that categorically or automatically excludes individuals with a criminal record from employment continues to be prohibited unless allowed under the exemptions. This could include informal screening procedures.

Arrest Records and Juvenile Convictions: Employers may not carry out a tangible adverse employment action (rejecting an otherwise qualified applicant, or terminating, disciplining, demoting, or denying promotion to an employee) merely based on an applicant’s or employee’s arrest record or juvenile conviction record. This restriction on consideration of arrest records does not apply to an adult arrest record where the individual is out on bail or released on personal recognizance pending trial.

"Legitimate Business Reason" Required for Adverse Action: As amended, the FCA now not only affects when an employer can consider a criminal record, but it impacts the substance of the employer’s decision by prohibiting employers from taking adverse action based on the criminal record unless the employer has a “legitimate business reason.”  The employer must apply the statutory definition of “legitimate business reason” and document its analysis of the relevant factors.  Note that this is required in the hiring context when an applicant is rejected based on a criminal record, and also during employment if an employee is disciplined or discharged due to a criminal record.

Significant New Disclosure Obligations: The FCA amendments impose two new disclosure obligations related to consideration of criminal history. 

1. The first disclosure obligation is one employers are most likely to have missed. It is triggered when either of the following occurs:

• An employer accurately discloses, such as through an offer letter or in direct communication, to the applicant that the position is subject to a background check after a conditional offer is made; or 
• An applicant volunteers information about their criminal history during an interview.

In both cases, employers must immediately provide the individual with: (1) a written summary of key requirements under the Act (that employers may not inquire about criminal history prior to a conditional offer; cannot categorically exclude those with criminal records from employment; cannot consider juvenile or arrest records; and cannot take adverse action based on a criminal record absent a legitimate business reason); and (2) a copy of the Attorney General's Washington Fair Chance Act Guide for Employers and Job Applicants. 

2. The second new disclosure obligation is triggered only if an employer intends to take adverse action towards an applicant or employee based on a criminal record. As detailed below, in this situation, the employer must follow an adverse action process that includes providing the individual pre-adverse action notice and an opportunity to respond, followed by a written decision explaining the legitimate business reason for the adverse action.

The second new disclosure obligation is triggered only if an employer intends to take adverse action towards an applicant or employee based on a criminal record. As detailed below, in this situation, the employer must follow an adverse action process that includes providing the individual pre-adverse action notice and an opportunity to respond, followed by a written decision explaining the legitimate business reason for the adverse action.

Adverse Action Procedure

So when can an employer carry out an adverse action (e.g., reject an applicant or discipline/terminate a current employee) based on an adult conviction record?

Employers may not take adverse action against an applicant or employee based on a criminal conviction record unless they have a legitimate business reason for doing so and have followed the statutory notice requirements. The legitimate business reason standard requires that the employer believes in good faith that the nature of the criminal conduct underlying the conviction will either:

• Negatively impact the individual'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 the second prong (harm or injury), the employer must consider and document the following factors:

• The seriousness of conduct underlying the adult conviction record;
• The number of types of convictions;
• Time elapsed since conviction, excluding incarceration; 
• Any verifiable information the individual provides about rehabilitation, good conduct, work experience, education, and training; 
• The specific duties and responsibilities of the position sought or held; and 
• The place and manner of performance. 

If you plan to take adverse action based on a legitimate business reason: 

• Pre-adverse action notice: Notify the applicant/employee and share the conviction record on which the employer is relying.  Note that this aligns with the requirements of the federal FCRA, which also requires a pre-adverse notice that includes a copy of the background report and a copy of the "Summary of Your Rights Under the Fair Credit Reporting Act." A single notice should comply with both laws. 
• Keep position open: After providing the pre-adverse action notice, hold the position open a minimum of two business days after your pre-adverse action notice, which gives the applicant/employee the opportunity to correct or explain the record, provide information about rehabilitation and other relevant information. Here again, this generally aligns with FCRA requirements, although it is best practice under the FCRA to leave the position open for at least five business days.  In situations where the FCRA applies (e.g., when you have used a background report supplied by third-party vendor), allowing at least five business days would ensure compliance with both federal and Washington law.  
• Proceeding with adverse action: If you decide to proceed with adverse action, provide a written decision to the applicant/employee addressing your reasoning and assessment of each of the relevant factors (mentioned above), including impact of the conviction on the position or business operations, and your consideration of the individual’s rehabilitation, good conduct, work experience, education, and training. To also ensure compliance with the federal FCRA, this adverse action notice should include contact information for the vendor that supplied the background check report; a statement that the vendor did not make the adverse action decision and cannot explain the reasons for it; notice of the right to dispute the background report; and notice of the right to obtain a free copy of the report within 60 days.

Exemptions from FCA Requirements

The FCA does not apply to: 

• An employer hiring an individual who will or may have unsupervised access to children under 18 or other vulnerable individuals as defined by law; 
• Law enforcement or criminal justice agencies; 
• Employers recruiting non-employee volunteers;
• Entities subject to the rules of a self-regulatory organization, as defined in the Securities Exchange Act; or 
• Employers hiring under a federal contract that specifically bars people with criminal records. 

Some exemptions are organizational; others are position-specific. Organizational exemptions apply to law enforcement or criminal justice agencies and should cover all positions within the organization regardless of duties.  Other exemptions are position-specific: the exemption attaches to the duties or nature of the job, not broadly to the entity doing the hiring.

Amendments Increase Penalties for Noncompliance

The Fair Chance Act is enforced by the Washington Attorney General’s Office (AGO).  The monetary penalties below may be imposed per aggrieved applicant or employee and are payable to the aggrieved individual or to the AGO where no aggrieved individual is identifiable. Notably, the FCA amendments authorize the AGO to pursue remedies such as unpaid wages, damages, and attorney’s fees and costs. This means as an employer if you reject an applicant or terminate an employee based on their criminal record in a manner not compatible with the law as amended, you could be liable for the wages that individual would have earned in addition to attorneys' fees.

Your Audit Checklist

Employers that have not yet reviewed their practices in light of the Fair Chance Act amendments should make this a top priority. Unless a hiring process is covered by a specific exemption to FCA requirements, here are recommended actions when auditing your practices:

• Review active job postings and remove exclusionary language.
• Review applications and online portals to remove any criminal history question.
• Confirm background checks are initiated only after a conditional offer. 
• If a job posting, application materials, or offer letter disclose that a background check will be required following the conditional offer, ensure that the required notifications of key FCA protections and a copy of the Attorney General's Fair Chance Act guide are included along with this disclosure. 
• Rebuild pre-adverse and final adverse action notices to satisfy the Fair Chance Act.
• Create a written individualized assessment form covering all statutory factors that hiring managers can use to support any adverse action that is based on a criminal record.
• Classify each position on an exemption basis and, where an exemption applies, document the reasoning.
• Brief recruiters and hiring managers on what they may not ask and what to do when a candidate volunteers criminal history information.
• Review third-party background check vendor contracts and confirm the vendor's process matches yours.
• Ensure that discipline/discharge practices for current employees are updated to ensure the adverse action process described above is used if a criminal record will be relied on to impose discipline or termination on an existing employee.

Resources

If you have any questions, please reach out to our Labor & Employment team. Additionally, you may register for our webinar on Ensuring Lawful Recruitment and Hiring Processes, which encompasses Fair Chance Amendments and other compliance requirements. 

This post is for informational purposes only and does not constitute legal advice. Employers should consult counsel about their specific circumstances.