Washington Background Check Reqs in Effect Now for Large + Medium Employers and in Jan. for Small Businesses

Takeaways

• Washington’s amended Fair Chance Act prohibits employers from requesting an individual’s criminal background information before a conditional offer of employment is made and also limits an employer’s ability to take tangible adverse employment actions against both applicants and employees because of their arrest or conviction records. 
• Medium and large employers are covered by new requirements effective 07.01.26, with the next effective date for small employers, 01.01.27.
• Employers should be proactive in understanding what steps they need to follow, including adding the new Washington State Attorney General’s Guide along with their required written notification to a candidate in the event of voluntary disclosure of a criminal conviction prior to a job offer and if they are subject to a background check after I dona conditional offer of employment.

Related links

• Washington Employers: Prepare for Hiring Practice Shifts as New Background Check Requirements Take Effect in 2026 + 2027
• Fair Chance Act | Washington State

Article

Washington State’s 2025 expanded Fair Chance Act, imposing additional limits on employers’ criminal information inquiries, went into effect for medium and large employers (15 or more employees) beginning July 1, 2026, and will be effective for small employers (fewer than 15 employees) beginning January 2027.

Employers with employees in the City of Seattle are already one step ahead under local law. The changes to state law will supplement those Seattle requirements and apply to employers throughout the state.

Timing of Inquiries

Unless otherwise required by law, only post-offer criminal history inquiries and criminal background checks will be permitted. Previously, an employer could potentially inquire earlier, after a candidate was deemed “otherwise qualified.”

Additionally, if an employer discloses to the applicant that the position is subject to a background check after a conditional offer of employment, or a candidate voluntarily discloses a conviction prior to any offer, the employer must immediately provide written notification of the law and the recently updated Attorney General’s Guide (AG’s Guide) for employers and job applicants. The AG’s Guide restates the law, as well as provides instructions and a link on how to file a complaint with the State Attorney General’s office.

According to the AG’s Guide, providing a separate written notification of the law includes informing the applicant in writing that:

1. An employer may not ask for or receive information about an applicant’s criminal history, orally or in writing, until after making an initial determination that (a) the applicant is otherwise qualified for the position and (b) making a conditional offer of employment; 
    
2. An employer may not implement policies or practices that automatically or categorically exclude job applicants with a criminal record, including rejecting applicants for failure to disclose a criminal record prior to receiving a conditional offer of employment; 
    
3. An employer may not carry out a tangible adverse employment action based on an applicant’s or employee’s adult arrest record of juvenile conviction record, provided the individual is not out on bail or released on their own personal recognizance pending trial; and 
    
4. An employer may not carry out a tangible adverse employment action solely based on an applicant’s or employee’s adult conviction record, unless the employer has a legitimate business reason for taking such action.

Even if an applicant voluntarily discloses a conviction prior to an offer and the employer immediately provides the required written notification alongside the AG’s Guide, the employer should still refrain from taking the conviction into consideration before a conditional offer is made.

In no event can the use of automatic disqualifiers for employment be relied upon unless permitted by law.

Arrest and Conviction Record Considerations

The recent amendments provide protections for both applicants and employees against tangible adverse employment made on the basis of criminal history. A tangible adverse employment action can be a decision by an employer to reject an otherwise qualified job applicant, or to terminate, suspend, discipline, demote, or deny a promotion to an employee. Because of an applicant’s or employee’s arrest record (pending and prior) or juvenile conviction record, an employer cannot take a tangible employment action. Specially excluded from this provision are adult arrests when an individual is out on bail or released on their own personal recognizance pending trial.

Further, an employer may not carry out a tangible adverse employment action based on an applicant’s or employee’s adult conviction record, unless the employer has a legitimate business reason for taking such action. Even with a legitimate business reason, the employer must conduct an individualized assessment as detailed below.

Individualized Assessment

Covered Washington employers are required to follow a specific individualized assessment process prior to denying employment. The process mandates:

1. Notifying and identifying the record on which the employer relied for purposes of assessing its legitimate business reason; 
    
2. Holding the position open a minimum of two business days to provide the individual a reasonable opportunity to correct or explain the “individual assessment factors” of rehabilitation, good conduct, work experience, education, and training; and
    
3. If, after providing the individual a reasonable opportunity to provide additional information, the employer makes a tangible adverse employment decision, the employer must provide the individual with a written decision, including specific documentation as to its reasoning and assessment of each of the relevant factors. This analysis would also include considering the impact of the conviction in the position or business operations, and its consideration of the individualized assessment factors.

Exclusions

The law recognizes a variety of exclusions, such as:

• Federal contract recipients; 
   
• Employers hiring persons who will have unsupervised access to children under 18, vulnerable adults, or vulnerable persons as defined by statute; or 
   
• Employers such as a financial institution that are expressly permitted or required under federal or state law to inquire into, consider, or rely upon information about an individual’s criminal record for employment purposes.

Employers should consult with legal counsel to determine if they fall within an applicable exclusion.

Enforcement

The law will be enforced by the state attorney general, which already enforces existing provisions of the law. Washington has stepped up enforcement to support its Fair Chance initiatives by increasing penalties. The attorney general may seek other damages, fees, and costs, as well.

Key Steps for Employers

Employers should be prepared to comply by taking the following proactive steps:

• Review recruitment processes to ensure advertisements comply with the law and that the employer does not request criminal background information before a conditional offer of employment is made. 
   
• Determine which forms or other documents will require updating in 2026 or 2027.
   
• In the event of employer disclosure to the applicant that the position is subject to a background check after a conditional offer of employment or employee voluntary disclosure of a conviction, include the recent AG’s Guide to the candidate along with the separate written notification. 
   
• Review any contracts in place with third parties to ensure compliance with this fair chance initiative. 

Jackson Lewis attorneys are available to provide employers with assistance on this and other workplace issues.

(Summer Associate Michelle Yee contributed to this article.)