Labor & Employment Law Daily Wrap Up, EXPERT INSIGHTS—Salmon, butter pats and vinyl: Washington State's newest invention will be more burdensome background check requirements, (May 20, 2025)

Law Firms Mentioned:BakerHostetler

Organizations Mentioned:One Cleveland Center, LLC

By Todd Lebowitz of BakerHostetler

In 1903, Edmund Smith invented the Automated Fish Cleaner. This glorious machine could gut, clean and can a salmon 55 times faster than a human could. In 1920, William Ruttle invented the butter cutter. This wonderfully named contraption could slice one-pound blocks of hardened butter into 54 perfectly formed and sized pats. In 1926, Waldo Semon invented vinyl, making possible the vinyl record, which is probably a fun fact he used to tell people at parties.

What do all these inventors have in common?

Each had close ties to Washington state.

A more recent product from Washington state is its ban-the-box law, originally enacted in 2019. Under the original law, employers cannot ask about criminal history until a conditional offer of employment has been made.

Last month, the Washington Legislature made substantial additions to that law. Although the changes do not take effect until July 1, 2026, they are significant and will impose new burdens on employers who conduct background checks.

Here's what employers conducting criminal background checks in Washington need to know.

Job Postings, Offer Letters

Once an employer discloses that a position will be subject to a background check, the employer must provide the applicant with a copy of the Washington Fair Chance Act: A Guide for Employers & Job Applicants. A copy of the current version is here, but it will be updated to account for the new requirements. The same notification will be required if the applicant voluntarily discloses a criminal history before a conditional offer is made.

Factors To Consider

The employer must not take tangible adverse action based on criminal history unless the employer has a "legitimate business reason." A "legitimate business reason" means that the employer believes in good faith that the nature of the criminal conduct will:

Have a negative impact on the employee's or applicant'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 reach this conclusion the employer must consider and document each of the following factors:

The seriousness of the conduct underlying the adult conviction record
The number and types of convictions
The time that has elapsed since the conviction, excluding periods of incarceration
Any verifiable information related to the individual's rehabilitation, good conduct, work experience, education and training, as provided by the individual
The specific duties and responsibilities of the position sought or held; and
The place and manner in which the position will be performed.

The employer cannot make an adverse decision based on an arrest record, but it may consider an adult arrest for which an individual is out on bail or has been released on their own personal recognizance pending trial.

Pre-Adverse Action

In addition to providing the federally required pre-adverse action notice, the employer must identify relevant portions of the applicant's criminal history and must hold the job open for at least two business days to give the applicant an opportunity to respond.

Post-Adverse Action

In addition to providing the federally required post-adverse action notice, the employer must provide specific documentation as to its reasoning and 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.

Exceptions

These requirements do not apply if:

The job involves unsupervised access to minors under 18, vulnerable adults or other vulnerable persons.
The law requires a review of criminal history, such as for financial institutions and self-regulatory organizations.
The role is an unpaid volunteer position.
A federal contract prohibits someone with a criminal history from performing the job.

Effective Dates

These new requirements take effect July 1, 2026, for employers with 15 or more employees and Jan. 1, 2027, for employers with fewer than 15 employees. The headcount appears to include all employees, not just those in Washington.

Next Steps for Employers

We can expect additional guidance to follow, and we can expect an update to the Fair Chance Act Guide. Employers will need to update their internal processes to comply with this amended law. Now is a good time to make a calendar note for spring 2026 to check for any updated materials and to plan for the process changes that will be necessary in order to comply.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Todd Lebowitz

BakerHostetler

One Cleveland Center

1375 E. 9th Street

Cleveland

OH 44114

United States

Tel.: +1 216 6210200

E-mail: mkohuth@bakerlaw.com

URL: www.bakerlaw.com/

Attorneys: (BakerHostetler).

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