Takeaways

• The amended Washington Fair Chance Act prohibits employers from requesting an individual’s criminal background information before a conditional offer of employment is made.
• All employers are covered by the new law, and the new requirements are effective beginning 07.01.26 and 01.01.27, depending on the size of the employer.
• Employers have time to prepare and should consider taking proactive steps.

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In the 2025 legislative session, Washington State expanded its Fair Chance Act in a number of different ways to impose additional limits on employers’ criminal background inquiries of applicants and employees. The changes go into effect for medium and large employers in July 2026 and for small employers in January 2027, giving employers plenty of time to get ready.

Employers with employees in the City of Seattle are already subject to most of these new requirements and restrictions. Therefore, 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.” If a candidate voluntarily discloses a conviction prior to any offer, the employer must provide notification of the law and an Attorney General Fair Chance Act guide for employers and job applicants.

Once receiving information about a candidate’s criminal history, an employer must proceed with caution. The use of automatic disqualifiers for employment cannot be relied upon unless permitted by law.

In addition, the fact that someone has a pending or prior arrest record should not be considered. For individuals convicted of a crime, Washington law will require a legitimate business reason for denying employment.

Individualized Assessment

Washington employers will be 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 rehabilitation, good conduct, work experience, education, and training (“individual assessment factors”); and
    
3. If, after giving the individual a reasonable opportunity to provide additional information, the employer makes a tangible adverse employment decision (such as rescinding a conditional offer or rejecting someone otherwise qualified), the employer must provide the individual with a written decision, including specific documents 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 financial institutions 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.

The restrictions apply to applicants for Washington-based employment and to Washington-based employees, regardless of whether an employer is based in Washington.

Enforcement

The law will be enforced by the state attorney general, which already enforces existing provisions of the law. The new law allows the attorney general to assess increased penalties. The attorney general may seek other damages, fees, and costs, as well.

Key Steps for Employers

Employers have time to prepare and should consider taking proactive steps:

• Review recruitment processes to ensure they do not request criminal background information before a conditional offer of employment is made.
• Determine which forms will require updating in 2026.
• Review any contracts in place with third parties to ensure compliance with this fair chance initiative.

Employers should keep in mind their obligations under the federal and state fair credit reporting acts if they plan to obtain criminal history reports from third-party vendors.

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