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Washington Background Check Laws

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Washington Employment Screening laws

Employers that are either located in Washington or hiring Washington residents must abide by the Federal FCRA, and applicable Washington state employment laws.

This page was created to provide a simple explanation of what an end-user of a background screening report (also known as consumer report) can use in order to be in compliance with Washington state laws. This page also contains steps an end-user must take to stay in compliance with Washington state laws.

Please keep in mind that the EEOC must always be taken into consideration when a hiring decision is to be made. The EEOC has provided guidance on how employers can use criminal records during the hiring process. This regulation was issued on April 25, 2012. The EEOC requires employers to individually review each applicant or employee that may be disqualified due to a criminal record. This also follows the regulations set forth by the Americans with Disabilities Act (ADA). Additionally, the EEOC wants to undertake an adverse action process similar to that of the FCRA. They want to add a pre-adverse action process of their own. Although employers already have an adverse action process that is specific to information contained in consumer reports, the EEOC's adverse action process may be different.

The information that is provided on this page does not discuss requirements under the EEOC nor does it explain how to use criminal records that fall under the regulation of the EEOC. It is suggested that compliance with the EEOC be discussed with legal counsel.

For more detailed information on Washington state laws, please consult your legal counsel.

Background Check Law Ban the Box Law Court Fee Court Cases Summary of Rights

Employment Background Check Laws In Washington:

Washington Administrative Code 162-12-140: Preemployment inquiries.

(1) The following examples of fair and unfair inquiries apply when made in reference to job application forms, preemployment interviews, or any other type of inquiry made of job applicants. The rules also apply to inquiries made to persons other than an applicant and to inquiries made by third parties such as a credit reporting service. The rules do not apply after a person is employed. See WAC 162-12-180.

(2) Employers and employment agencies shall comply with these rules except where one or more of the following conditions exist:

(a) When there is a “bona fide occupational qualification.”

(b) A voluntary affirmative action plan that is in compliance with the requirements of a government agency or other competent authority such as a court, and if made in a manner provided in WAC 162-12-160 and 162-12-170.

(c) A requirement of federal law or regulation, as explained in WAC 162-12-150.
If one or more of the above conditions apply, the inquiries of employers and employment agencies must be accompanied by a written explanation of their purpose. See WAC 162-12-135, 162-12-160 and 162-12-170.

(3) The following examples of fair and unfair preemployment inquiries define what is an unfair practice under RCW 49.60.180(4) and 49.60.200. These examples, however, are not all inclusive. All preemployment inquiries that unnecessarily elicit the protected status of a job applicant are prohibited by these statutes irrespective of whether or not the particular inquiry is covered in this regulation.

Ninja's summary

Employers may not use arrest records for employment decisions. Doing so is considered an unfair employment practice by the Washington Human Rights Commission. Please visit the Washington State Legislature website listed below for more information regarding specific and detailed regulations for pre-employment screening.

http://apps.leg.wa.gov/WAC/default.aspx?cite=162-12-140

Revised Code of Washington §19.182.020: Consumer report—Furnishing—Procuring.

(1) A consumer reporting agency may furnish a consumer report only under the following circumstances:

(a) In response to the order of a court having jurisdiction to issue the order;

(b) In accordance with the written instructions of the consumer to whom it relates; or

(c) To a person that the agency has reason to believe:

(i) Intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer;

(ii) Intends to use the information for employment purposes;

(iii) Intends to use the information in connection with the underwriting of insurance involving the consumer;

(iv) Intends to use the information in connection with a determination of the consumer’s eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant’s financial responsibility or status; or

(v) Otherwise has a legitimate business need for the information in connection with a business transaction involving the consumer.

(2)(a) Subject to (c) of this subsection, a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer who is not an employee at the time the report is procured or caused to be procured unless:

(i) A clear and conspicuous disclosure has been made in writing to the consumer before the report is procured or caused to be procured that a consumer report may be obtained for purposes of considering the consumer for employment. The disclosure may be contained in a written statement contained in employment application materials; or

(ii) The consumer authorizes the procurement of the report.

(b) A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any employee unless the employee has received, at any time after the person became an employee, written notice that consumer reports may be used for employment purposes. A written statement that consumer reports may be used for employment purposes that is contained in employee guidelines or manuals available to employees or included in written materials provided to employees constitutes written notice for purposes of this subsection. This subsection does not apply with respect to a consumer report of an employee who the employer has reasonable cause to believe has engaged in specific activity that constitutes a violation of law.

(c) As applied to (a) and (b) of this subsection, a person may not procure a consumer report for employment purposes where any information contained in the report bears on the consumer’s creditworthiness, credit standing, or credit capacity, unless the information is either:

(i) Substantially job related and the employer’s reasons for the use of such information are disclosed to the consumer in writing; or

(ii) Required by law.

(d) In using a consumer report for employment purposes, before taking any adverse action based in whole or part on the report, a person shall provide to the consumer to whom the report relates: (i) The name, address, and telephone number of the consumer reporting agency providing the report; (ii) a description of the consumer’s rights under this chapter pertaining to consumer reports obtained for employment purposes; and (iii) a reasonable opportunity to respond to any information in the report that is disputed by the consumer. This subsection applies to job applicants and current employees.

Ninja's summary

Employers are prohibited from requesting an employee’s or an applicant’s credit history or credit report. Employers are only permitted to request an employee’s or an applicant’s credit report if; (1) there are substantial job related reasons and those reasons are disclosed to the individual in writing, or (2) obtaining the credit report on the individual is required by State or Federal law.

Revised Code of Washington §49.44.200: Personal social networking accounts—Restrictions on employer access.

(1) An employer may not:

(a) Request, require, or otherwise coerce an employee or applicant to disclose login information for the employee’s or applicant’s personal social networking account;

(b) Request, require, or otherwise coerce an employee or applicant to access his or her personal social networking account in the employer’s presence in a manner that enables the employer to observe the contents of the account;

(c) Compel or coerce an employee or applicant to add a person, including the employer, to the list of contacts associated with the employee’s or applicant’s personal social networking account;

(d) Request, require, or cause an employee or applicant to alter the settings on his or her personal social networking account that affect a third party’s ability to view the contents of the account; or

(e) Take adverse action against an employee or applicant because the employee or applicant refuses to disclose his or her login information, access his or her personal social networking account in the employer’s presence, add a person to the list of contacts associated with his or her personal social networking account, or alter the settings on his or her personal social networking account that affect a third party’s ability to view the contents of the account.

(2) This section does not apply to an employer’s request or requirement that an employee share content from his or her personal social networking account if the following conditions are met:

(a) The employer requests or requires the content to make a factual determination in the course of conducting an investigation;

(b) The employer undertakes the investigation in response to receipt of information about the employee’s activity on his or her personal social networking account;

(c) The purpose of the investigation is to: (i) Ensure compliance with applicable laws, regulatory requirements, or prohibitions against work-related employee misconduct; or (ii) investigate an allegation of unauthorized transfer of an employer’s proprietary information, confidential information, or financial data to the employee’s personal social networking account; and

(d) The employer does not request or require the employee to provide his or her login information.

(3) This section does not:

(a) Apply to a social network, intranet, or other technology platform that is intended primarily to facilitate work-related information exchange, collaboration, or communication by employees or other workers;

(b) Prohibit an employer from requesting or requiring an employee to disclose login information for access to: (i) An account or service provided by virtue of the employee’s employment relationship with the employer; or (ii) an electronic communications device or online account paid for or supplied by the employer;

(c) Prohibit an employer from enforcing existing personnel policies that do not conflict with this section; or

(d) Prevent an employer from complying with the requirements of state or federal statutes, rules or regulations, case law, or rules of self-regulatory organizations.

(4) If, through the use of an employer-provided electronic communications device or an electronic device or program that monitors an employer’s network, an employer inadvertently receives an employee’s login information, the employer is not liable for possessing the information but may not use the login information to access the employee’s personal social networking account.

(5) For the purposes of this section and RCW 49.44.205:

(a) “Adverse action” means: Discharging, disciplining, or otherwise penalizing an employee; threatening to discharge, discipline, or otherwise penalize an employee; and failing or refusing to hire an applicant.

(b) “Applicant” means an applicant for employment.

(c) “Electronic communications device” means a device that uses electronic signals to create, transmit, and receive information, including computers, telephones, personal digital assistants, and other similar devices.

(d) “Employer” means any person, firm, corporation, partnership, business trust, legal representative, or other business entity which engages in any business, industry, profession, or other activity in this state and employs one or more employees, and includes the state, any state institution, state agency, political subdivisions of the state, and any municipal corporation or quasi-municipal corporation. “Employer” includes an agent, a representative, or a designee of the employer.

(e) “Login information” means a user name and password, a password, or other means of authentication that protects access to a personal social networking account.

Ninja's summary

Employers may not directly or indirectly require an applicant or an employee to disclose their login credentials that provides access to their social media accounts. In addition, employers may not require an employee or an applicant to change their account settings on a social media account so that it changes the ability of third parties to view the contents of that account.

Update: Feb 2018

Fair Credit Reporting Act (FCRA):

The Fair Credit Reporting Act (FCRA) is a set of federal guidelines that helps regulate hiring practices. The FCRA was created to ensure privacy, accuracy, and fairness of consumer information. The FCRA accomplishes this by having a set standard for collecting, disseminating, and using consumer information.

Employers obtaining consumer reports for background screening purposes must follow specific procedures. For example, employers must disclose to the candidate what the background screening is, what information it includes, and how they intend to use it. They must obtain the written consent of the candidate before obtaining a background screening. They may not misuse the information contained in the background screening. There are also strict procedures an employer must follow should they decide not to hire a potential candidate based on the information in the background screening.

The purpose of the FCRA is to help protect employers, employees, and potential job candidates.

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

Seattle Ban the Box (Seattle Fair Chance Employment Ordinance)

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form.

For further information regarding the Fair Chance Employment Ordinance, please visit the Office of Labor Standards website- http://www.seattle.gov/laborstandards/ordinances/fair-chance-employment

Spokane's Ban the Box

Employers may not inquire into an applicant’s criminal history during the initial stage of the employment process. Questions regarding criminal history may not be on the employment application form. Inquiries into criminal history can only be made after the candidate has completed a first interview.


Update: Feb 2018

Disclaimer

This material is time sensitive. Contact us for updates. This information is subject to frequent change through legislative and court action.

All materials in this page and accompanying information are for general educational purposes and not intended to provide legal, scientific or medical advice. Consult with an appropriate professional to address specific issues.

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A SUMMARY OF YOUR RIGHTS UNDER THE WASHINGTON FAIR CREDIT REPORTING ACT

The Washington Fair Credit Reporting Act, located at Chapter 19.182 RCW, substantially parallels the federal Fair Credit Reporting Act and the rights and remedies set forth in the Consumer Financial Protection Bureau’s Summary of Rights, except that, effective July 22, 2007, the Washington State law imposes greater limitations on the reasons for which an employer may obtain a consumer report. Beginning July 22, 2007, an employer may not obtain a consumer report that indicates the consumer’s credit worthiness, credit standing, or credit capacity, unless (1) the information is substantially job related and the employer’s reasons for using the information are disclosed in writing, or (2) the information is required by law.

Under the Fair Credit Reporting Act (FCRA), all consumers are entitled to one free annual file disclosure in any twelve month period. You may be charged a reasonable fee, not exceeding eight dollars, for each additional disclosure within any 12-month period.

However, there is no fee if (1) you have been notified of an adverse action taken towards you based upon information appearing in your consumer file within the preceding 60 days, (2) you suspect that your file may contain fraud or you have been the victim of identity theft, or (3) you are unemployed or are currently receiving financial assistance.

A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to you if you are not an employee at the time the report is procured or caused to be procured unless:

  • A clear and conspicuous disclosure has been made in writing to you before the report is procured or caused to be procured that a consumer report may be obtained for purposes of considering the consumer for employment. The disclosure may be contained in a written statement contained in employment
    application materials; or
  • You authorize the procurement of the report.

A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any employee unless the employee has received, at any time after the person became an employee, written notice that consumer report may be used for employment purposes. A written statement that consumer reports may be used for employment purposes that is contained in employee guidelines or manuals available to employees or included in written materials provided to employees constitutes written notice. This rule does not apply with respect to a consumer report of an employee who the employer has reasonable cause to believe has engaged in specific activity that constitutes a violation of law.

  • The name, address, and telephone number of the consumer reporting agency providing the report;
  • A description of your rights under this chapter pertaining to consumer reports obtained for employment purposes; and
  • A reasonable opportunity to respond to any information in the report that is disputed by the consumer.

A consumer reporting agency may provide a user a consumer report in connection with a credit transaction that is not initiated by you only if you authorized the consumer reporting agency to provide the report to such a person; or you have not elected to have your name and address excluded from such transactions.

In connection with a credit transaction that is not initiated by you, a consumer reporting agency may only provide your name and address and information that is not identified or identifiable with your particular accounts or transactions.

You may elect to have your name and address excluded from any list provided by a consumer reporting agency through prescreening, or from any list provided by a consumer reporting agency for direct solicitation transactions that are not initiated by you by notifying the consumer reporting agency. The notice must be made in writing through the notification system maintained by the consumer reporting agency and must state that you do not consent to any use of consumer reports relating to you in connection with any transaction that is not initiated by you.

An election to have your information excluded is effective with respect to a consumer reporting agency and any affiliate of the consumer reporting agency, within five business days after the consumer reporting agency receives your notice.

A consumer reporting agency that provides information intended to be used in a prescreened credit transaction or direct solicitation transaction that is not initiated by you shall maintain a notification system that facilitates your ability to notify the agency to promptly withdraw your name from lists compiled for prescreened credit transactions and direct solicitation transactions not initiated by you, and shall publish, at least annually, in a publication of
general circulation in the area served by the agency, the address for consumers to use to notify the agency of the consumer's election to exclude information.

A consumer reporting agency that maintains consumer reports on a nation-wide basis shall establish a system meeting these requirements on a nation-wide basis, and may operate such a system jointly with any other consumer reporting agencies. Compliance with the requirements of this section by any consumer reporting
agency constitutes compliance by the agency's affiliates.

A consumer reporting agency shall, upon your request, clearly and accurately disclose all information in your file, except that medical information may be withheld. The agency shall inform you of the existence of medical information, and you have the right to have that information disclosed to the health care provider of your choice. Nothing in this chapter prevents, or authorizes a consumer reporting agency to prevent, the health care provider from disclosing the medical information to you. The agency shall inform you of the right to disclosure of medical information at the time you request disclosure of your file.

If a person takes an adverse action against you based in whole or part on the information contained in a consumer report, the person shall provide written notice of the adverse action to you, except verbal notice may be given by a person in an adverse action involving a business regulated by the Washington utilities and transportation commission or involving an application for the rental or leasing of residential real estate if such verbal notice does not impair your ability to obtain a credit report without charge under RCW 19.182.100(2). The person taking adverse action must also provide you with the name, address, and telephone number of any other consumer reporting agency that furnished the report.

A consumer reporting agency shall, upon your request clearly and accurately disclose:

  • All information in your file at the time of request, except that medical information may be withheld. The agency shall inform you of the existence of medical information, and you have the right to have that information disclosed to the health care provider of your choice. Nothing in this chapter prevents, or authorizes a consumer reporting agency to prevent the health care provider from disclosing the medical information to you. You have the right to disclosure of medical information at the time you request disclosure of your file.
  • All items of information in its files on you, including disclosure of the sources of the information, except that sources of information acquired solely for use in an investigative report may only be disclosed to a plaintiff under appropriate discovery procedures.
  • Identification of each person who for employment purposes within the two-year period before the request, and each person who for any other purpose within the six-month period before the request, procured a consumer report.
  • A record identifying all inquiries received by the agency in the six-month period before the request that identified the you in connection with a credit transaction not initiated by you.
  • An identification of a person under the rules above must include the name of the person or, if applicable, the trade name under which the person conducts business, and upon your request, the address of the person.

Consumer reporting agencies that provide toll-free telephone numbers must also provide adequately trained personnel to answer basic inquiries from consumers using the toll-free numbers.

If the completeness or accuracy of an item of information contained in your file at a consumer reporting agency is disputed by you and you notify the agency directly of the dispute, the agency shall reinvestigate without charge and record the current status of the disputed information before the end of thirty business days, beginning on the date the agency receives the notice.

Before the end of the five business-day period beginning on the date a consumer reporting agency receives notice of a dispute the agency shall notify any person who provided an item of information in dispute.

Notwithstanding the right to dispute information a consumer reporting agency may terminate a reinvestigation of information disputed by you if the agency determines that the dispute is frivolous or irrelevant, including by reason of a failure to provide sufficient information.

Upon making a determination in accordance that a dispute is frivolous or irrelevant, a consumer reporting agency shall notify you within five business days of the determination. The notice shall be made in writing or any other means authorized by you that are available to the agency, but the notice shall include the reasons for the determination and a notice of your rights.

In conducting a reinvestigation with respect to disputed information in your file, the consumer reporting agency shall review and consider all relevant information submitted by you in the period described with respect to the disputed information.

If, after a reinvestigation the information is found to be inaccurate or cannot be verified, the consumer reporting agency shall promptly delete the information from the consumer's file. If information is deleted the information may not be reinserted unless the person who furnishes the information verifies that the information is complete and accurate.

If information that has been deleted from a consumer's file is reinserted in the file the consumer reporting agency shall notify you of the reinsertion within thirty business days. The notice shall be in writing or any other means authorized by you that are available to the agency.

If the reinvestigation does not resolve the dispute or if the consumer reporting agency determines the dispute is frivolous or irrelevant, you may file a brief statement setting forth the nature of the dispute. The consumer reporting agency may limit these statements to not more than one hundred words if it provides you with assistance in writing a clear summary of the dispute.

After the deletion of information from your file under this section or after the filing of a statement of dispute the consumer reporting agency shall, at your request, furnish notification that the item of information has been deleted or that item of information is disputed. In the case of disputed information, the notification shall include the statement filed by you setting forth the nature of the dispute. The notification shall be furnished to any person specifically designated by you, who has, within two years before the deletion or filing of a dispute, received a consumer report concerning you for employment purposes, or who has, within six months of the deletion or the filing of the dispute, received a consumer report concerning you for any other purpose, if these consumer reports contained the deleted or disputed information.

Upon completion of the reinvestigation under this section, a consumer reporting agency shall provide notice, in writing or by any other means authorized by you, of the results of a reinvestigation within five business days.

The notice required must include:

  • A statement that the reinvestigation is completed;
  • A consumer report that is based upon the your file as that file is revised as a result of the reinvestigation;
  • A description or indication of any changes made in the consumer report as a result of those revisions to your file;
  • Upon your request, a description of the procedure used to determine the accuracy and completeness of the information shall be provided to you by the agency, including the name, business address, and telephone number of any person contacted in connection with the information;
  • If the reinvestigation does not resolve the dispute, a summary of your right to file a brief statement as provided above section; and
  • If information is deleted or disputed after reinvestigation, a summary of your right to request notification to persons who have received a consumer report as provided above.

In the case of a consumer reporting agency that compiles and maintains consumer reports on a nation-wide basis, the consumer reporting agency must provide to you, if you have undertaken to dispute the information contained in your file, a toll-free telephone number that you can use to communicate with the agency. A consumer reporting agency that provides a toll-free number required by this subsection shall also provide adequately trained personnel to answer basic inquiries from consumers using the toll-free number.

Except as authorized no consumer reporting agency may make a consumer report containing any of the following items of information:

  • Bankruptcies that, from date of adjudication of the most recent bankruptcy, antedate the report by more than ten years;
  • Suits and judgments that, from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period;
  • Paid tax liens that, from date of payment, antedate the report by more than seven years;
  • Accounts placed for collection or charged to profit and loss that antedate the report by more than seven years;
  • Records of arrest, indictment, or conviction of crime that, from date of disposition, release, or parole, antedate the report by more than seven years;
  • Any other adverse item of information that antedates the report by more than seven years.

This section is not applicable in the case of a consumer report to be used in connection with:

  • A credit transaction involving, or that may reasonably be expected to involve, a principal amount of fifty thousand dollars or more
  • The underwriting of life insurance involving, or that may reasonably be expected to involve, a face amount of fifty thousand dollars or more; or
  • The employment of an individual at an annual salary that equals, or that may reasonably be expected to equal, twenty thousand dollars or more.

You have a right to bring civil action against anyone who willfully or negligently fails to comply with any requirement imposed under the subtitle of Washington state law outlined above.

If you believe a law regulating consumer credit reporting has been violated, you may file a complaint with the Washington State Attorney General's Office, 1125 WASHINGTON ST SE · PO BOX 40100, OLYMPIA WA 98504-0100.

Telephone Number: 360-753-6200

CONSUMER PROTECTION DIVISION: The Consumer Resource Center Statewide Toll-Free Number: 800-551-9883. Complaints may be made Via U.S. Mail or E-Mail at: http://ww.atg.wa.gov/FileAComplaint.aspx (Include your U.S. Mail address with any complaint.)

KEY COURT DECISIONS
Court Case Issue Outcome Employer Limitation/ Action

Rosario v. Starbucks Corp

Plaintiff claims that Starbucks denied him employment based on inaccurate information in a background screening, and did not properly follow adverse action. Plaintiff claims that Starbucks had already denied him employment, with no intent to hire him should a dispute come back in his favor, by the time he received his pre-adverse action notification.

Case Pending. Rosario is the lead plaintiff for this class action lawsuit.

Employers need to ensure that they are properly following adverse action procedures, and give the applicant proper notification and ability to explain or correct any inaccuracies.

Connolly v. Umpqua Bank et al

Plaintiff claims the bank unlawfully ran a credit check during the background screening process.

Case Pending. Connolly is the lead plaintiff for this class action.

Employers must ensure that they have a “legitimate business need” when procuring a credit check.

TO PAGETOP