Washington employers cannot run a criminal history check whenever they like. State law, and in Seattle a separate city ordinance, controls when an employer can ask about an applicant’s criminal record, what can go in a job ad, and how an employer has to handle a conviction once it shows up on a report. Getting the sequence wrong is a common compliance mistake, and it carries real penalties. This guide covers what chapter 49.94 RCW, the Washington Fair Chance Act, requires, where Seattle’s rule goes further, and how the state layer interacts with the federal Fair Credit Reporting Act.
What the Washington Fair Chance Act Covers
The Washington Fair Chance Act restricts when and how an employer can inquire about a job applicant’s or employee’s criminal record. Under RCW 49.94.010, an employer may not ask about criminal history on a job application, ask about it orally or in writing, run a background check, or otherwise obtain criminal record information until it has already determined the applicant is otherwise qualified and has made a conditional offer of employment. The sequence has to be: screen for qualifications first, extend a conditional offer second, and only then request or review criminal history.
The law also reaches job advertising. An employer may not post an opening in a way that excludes people with a criminal record from applying. Language like “no felons” or “no criminal background” in a help wanted ad is prohibited outright. Employers also cannot adopt a blanket policy that automatically screens out every applicant with any kind of criminal record, and they cannot reject someone simply because the applicant did not disclose a criminal record before receiving a conditional offer, since the law does not require that disclosure in the first place.
Arrest Records, Convictions, and the Legitimate Business Reason Standard
Washington law treats arrest records and conviction records differently. An employer generally cannot take a tangible adverse employment action, such as declining to hire, based on an arrest record or a juvenile conviction record at all. For adult conviction records, an employer may take an adverse action only if it has a legitimate business reason for doing so.
Before acting on a conviction record, the statute requires the employer to notify the applicant or employee, identify the specific record being relied on, and hold the position open for a minimum window, set by statute at two business days, so the person has a real chance to correct the record, explain the circumstances, or point to rehabilitation, work history, education, or training. If the employer moves forward with the adverse action, it must give the applicant or employee a written decision documenting the reasoning, including how the conviction relates to the job and how the employer weighed rehabilitation and related factors. Skipping this individualized assessment step is one of the more common ways employers end up out of compliance even when the underlying hiring decision was reasonable.
Who Is Exempt From the Washington Fair Chance Act
Section 49.94.010 carves out several categories of employers and positions. The table below summarizes the main exemptions as written in the statute.
| Exemption | What it covers |
|---|---|
| Unsupervised access positions | Roles that will or may involve unsupervised access to a child under eighteen, a vulnerable adult, or a vulnerable person as defined under Washington law |
| Legally mandated screening | Employers, including financial institutions, that are expressly permitted or required by other federal or state law to consider an applicant’s criminal record |
| Law enforcement and criminal justice agencies | Hiring by a Washington law enforcement agency or a criminal justice agency as those terms are defined in state law |
| Nonemployee volunteers | An employer seeking an unpaid volunteer rather than an employee |
| Self-regulatory organization compliance | Entities that must comply with the rules of a securities self-regulatory organization under federal securities law |
| Federal contract restrictions | Positions under a federal contract that specifically bars people with criminal records from the work |
How the Fair Chance Act Interacts With Other Laws
Chapter 49.94 does not stand alone. Under RCW 49.94.020, the Fair Chance Act cannot be used to diminish protections under Title VII of the federal Civil Rights Act, the federal Fair Credit Reporting Act, Washington’s own consumer reporting law, or state laws governing access to children and vulnerable adults. The statute also makes clear it does not create a private lawsuit for damages. The exclusive remedy for a violation runs through the attorney general’s enforcement process described below, and local governments remain free to enact stronger protections, which is exactly what Seattle has done.
Separately, when a criminal history report is generated by a consumer reporting agency rather than pulled directly by the employer, it is also a consumer report under Washington’s state consumer reporting law, RCW 19.182.020, and under the federal Fair Credit Reporting Act, which the Consumer Financial Protection Bureau implements through Regulation V. That means the employer still owes the applicant a clear written disclosure before the report is procured, needs authorization, and must follow the standard pre-adverse and adverse action notice steps. The Fair Chance Act layers on top of that framework, it does not replace it.
Attorney General Enforcement and Penalties
The Washington attorney general’s office is the only enforcement authority for the Fair Chance Act under RCW 49.94.030. The office can investigate on its own, respond to complaints, issue civil investigative demands, and pursue administrative sanctions or a court action for penalties, costs, and attorneys’ fees. For a first violation, or one the office considers minor, it has discretion to waive a monetary penalty and instead issue a warning with education on how to comply. The maximum administrative penalty is higher for a second violation and higher still for each one after that. Penalties are assessed per aggrieved applicant or employee, and where there is an identifiable person harmed, the penalty is paid to that person rather than kept by the state. The office maintains a public page with an employer and job applicant guide and a complaint process employers can use to check current guidance.
Seattle’s Fair Chance Employment Ordinance Goes Further
Employers with workers in Seattle have to comply with a second, stricter layer. The Seattle Fair Chance Employment Ordinance, codified at SMC 14.17, is enforced by the city’s Office of Labor Standards rather than the state attorney general, and it uses similar concepts, timing restrictions, a ban on categorical exclusions in job ads, and a legitimate business reason standard for denying employment based on a conviction, but it defines and applies those concepts on its own terms. The table below compares the two layers at a glance; employers with Seattle workers need to satisfy both, not just the stricter of the two on any given point.
| Feature | Washington State (RCW 49.94) | Seattle (SMC 14.17) |
|---|---|---|
| Enforced by | Washington attorney general’s office | Seattle Office of Labor Standards |
| Applies to | Employers operating in Washington | Employers with employees performing work within Seattle |
| Job ad restriction | No exclusion of people with criminal records | No exclusion of people with criminal records |
| Adverse action standard for convictions | Legitimate business reason plus individualized assessment | Legitimate business reason as defined under the city ordinance |
| Private lawsuit available | No, enforcement only through the attorney general | Administrative complaint through Seattle’s process |
What a Washington State Patrol WATCH Check Actually Shows
Many employers assume a state background check captures everything relevant to a hiring decision. The Washington State Patrol operates the WATCH system (Washington Access to Criminal History), a public tool that returns Washington conviction records and certain pending cases based on a name and date of birth search. Because the search relies on identifying information rather than fingerprints, results can include false matches or miss records tied to name variations, and the system excludes vacated cases, sealed records, and misdemeanor traffic violations from public results. A name based state check also will not surface out of state or federal offenses, which is why employers who need a fuller picture typically pair a state level search with county, federal, and multi state record sources.
Do Washington Rules Cover Credit History Checks Too?
Washington does not have a standalone statute banning employers from checking credit history the way some other states do. Credit reports pulled for employment purposes, however, are still consumer reports and remain fully subject to the disclosure, authorization, and adverse action rules in Washington’s consumer reporting statute and the federal Fair Credit Reporting Act described above. Employers using a credit report for a hiring decision generally need a job related reason for doing so and must follow the same notice steps that apply to a criminal history report. Because rules on credit based screening vary considerably by jurisdiction, employers hiring outside Washington should confirm the local rule rather than assume Washington’s approach applies everywhere.
A Practical Compliance Checklist
| Step | What it requires |
|---|---|
| Review job postings | Remove any language that excludes applicants with a criminal record |
| Sequence the process | Screen for minimum qualifications and extend a conditional offer before asking about or reviewing criminal history |
| Confirm exemption status | Check whether the role qualifies for an exemption, such as unsupervised access to children or vulnerable adults, before relying on one |
| Deliver FCRA disclosures | Provide a standalone written disclosure and get authorization before procuring a consumer report, separate from the job application |
| Individualize any denial | Identify the specific record relied on, give a real opportunity to respond, and document the legitimate business reason in writing |
| Check Seattle status | Apply SMC 14.17 in addition to state law for any employee performing work inside Seattle |
| Follow adverse action steps | Send pre-adverse action notice with a copy of the report and Summary of Rights, then a final adverse action notice if the decision stands |
Frequently asked questions
Does the Washington Fair Chance Act apply to every employer in the state?
It applies broadly to employers operating in Washington, but the statute carves out specific exemptions, including roles with unsupervised access to children or vulnerable adults, law enforcement and criminal justice agencies, certain financial institutions, and a few other narrow categories. Employers should check RCW 49.94.010 against the specific role before assuming an exemption applies.
Can a Washington employer ever ask about criminal history on the job application itself?
Generally no. The law prohibits asking about criminal history, in any form, until after the employer has determined the applicant is otherwise qualified and has extended a conditional offer of employment. An applicant may still choose to disclose criminal history voluntarily during an interview, and an employer may state that a role is subject to a background check, without violating the law.
What counts as a legitimate business reason under RCW 49.94?
The statute does not hand employers a fixed checklist. It requires the employer to weigh the nature and seriousness of the conviction against the specific duties of the position, and to document its assessment along with the applicant’s rehabilitation, work history, education, and training before finalizing an adverse decision. Because this determination is fact specific, employers with questions about a particular case may want to consult legal counsel rather than apply a blanket rule.
Is Seattle’s Fair Chance Employment Ordinance the same as the state law?
No. Seattle’s ordinance, SMC 14.17, is a separate city law enforced by the Seattle Office of Labor Standards. It shares the same general goals as the state Fair Chance Act, timing restrictions, a ban on excluding applicants with criminal records from job ads, and a legitimate business reason standard, but it is a distinct legal requirement that applies on top of state law for employees performing work in Seattle.
What happens if an employer violates the Washington Fair Chance Act?
The Washington attorney general’s office enforces the law and can issue a warning for a first or minor violation, or pursue administrative penalties for repeat violations, with the penalty amount payable to the affected applicant or employee where one can be identified. The statute does not create a separate private right to sue for damages.
Does the Fair Chance Act also restrict credit history checks?
The Fair Chance Act itself is focused on criminal history, not credit history. Credit reports used for employment in Washington remain governed by Washington’s consumer reporting statute and the federal Fair Credit Reporting Act, which require their own disclosure, authorization, and adverse action process regardless of the Fair Chance Act.
Washington employers who want a wider view of how ban the box style rules work outside Washington can see our overview of ban the box and fair chance hiring laws. Employers hiring across state lines may also find it useful to compare this framework with California’s background check law, another state that layers its own fair chance rule on top of the federal FCRA. For help building a screening process that fits these timing and disclosure rules, visit Reveal Background.
This article is general information about Washington and Seattle law, not legal advice. Background screening laws change and vary by jurisdiction, and employers should confirm current requirements with the primary sources linked above or with qualified counsel before making a hiring decision.
