Is it legal for an employment agency in WA State to ask about prior criminal convictions on their application?
Seattle, WA |
I've been told that employment agencies in Washington State can't ask questions about prior legal convictions over the last ten years on their initial application; nor can they share that info with a prospective employer. Is this true?
Washington is one of the states that provides the most protections for applicants with a criminal record. As for arrests, an employer who asks about arrests must consider whether the charges are still pending, have been dismissed, or have led to conviction that would adversely affect the applicant’s job performance. Employers may consider only arrests that have occurred in the past ten years.
An employer is entitled to obtain complete criminal record information on candidates from the state only:
(1) for purposes of securing a bond required for employment
(2) for applicants to positions that have access to information affecting national security, trade secrets, confidential or proprietary business information, money, or valuable items, or
(3) to assist in an investigation of suspected employee misconduct that may also constitute a penal offense under federal or state law.
If an employer gets such a record, it must notify the employee within 30 days of receiving it or upon completing its investigation of employee misconduct. The employer must allow the employee to examine the record.
An employer may make employment decisions based on an applicant’s conviction only if the conviction or the applicant’s release from prison occurred within the past ten years and the crime reasonably related to the job duties for the position.
No legal advice here.
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To add to Christine's answer, the federal Equal Employment Opportunity Commission (EEOC) recently issued new guidance regarding what it considers acceptable use of criminal background information. Employers can consider criminal convictions when making an employment decision so long as the decision is justified by "business necessity." Before making an adverse employment decision based on a criminal conviction, the employer must consider: (1) the nature and gravity of the offense; (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought. According to the EEOC, an individualized assessment is required in most cases and the applicant should be given the opportunity to explain why their application should not be disqualified. See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.