Washington Fair Chance Act: Hiring Rules and Complaints

The Washington Fair Chance Act (RCW 49.94) bars employers in Washington from asking about your criminal history until they have determined you are qualified and extended a conditional offer of employment. The law has been on the books since 2018, but major amendments take effect on a phased schedule: July 1, 2026 for employers with 15 or more employees, and January 1, 2027 for smaller employers. The updates add a structured process employers must follow before rejecting anyone based on a conviction, raise the penalty ceiling to $15,000 per violation, and put enforcement squarely with the state Attorney General.

Who Is Covered

The Act reaches nearly every employer in the state. “Employer” is defined broadly to include any public agency, private business, partnership, corporation, or other entity with one or more employees, plus anyone acting on the employer’s behalf.¹ There is no minimum headcount to trigger coverage. A two-person shop is under the same rules as a hospital system.

On the applicant side, the law protects anyone applying for a paid position, whether full-time, part-time, or temporary. It also covers current employees seeking a promotion or transfer within the same organization.¹ Internal candidates get the same protections as outside applicants.

What Employers Cannot Do Before a Conditional Offer

The Act draws a wall between the qualification stage and the background-check stage of hiring. Before extending a conditional offer, an employer cannot:

Include any question, checkbox, or field about arrests or convictions on a written or electronic application.
Ask about criminal history in interviews, orally or in writing.
Run a criminal background check or otherwise try to obtain record information.
Apply any policy or practice that categorically excludes people with criminal records from consideration.
Reject an applicant for failing to disclose a criminal record before the conditional offer.

The restrictions also cover job advertisements. Postings that say “no felons,” “no criminal background,” or anything conveying a similar message are explicitly prohibited.¹ Automated screening software that filters out anyone with a criminal record before a conditional offer runs into the same problem.

The trigger for lawful inquiry is the conditional offer itself. Deciding on paper that someone could do the job is not enough. The employer has to actually extend an offer that is conditioned on the outcome of the background review.

When a Conviction Can Cost You the Offer

Once a conditional offer is on the table, the employer may run a background check and ask about your record. What it can do with what it finds is closely regulated by the amended law.

Records That Cannot Be Used Against You

An employer is flatly prohibited from taking adverse action based on an arrest record or a juvenile conviction record.¹ An arrest that never led to a conviction cannot be held against you. Neither can anything on your juvenile record. The one narrow exception involves an adult currently out on bail or released pending trial for an active case.

The Six-Factor “Legitimate Business Reason” Test

Adult convictions can be considered, but only if the employer has a legitimate business reason for the decision. That phrase is not left open. The employer must believe in good faith that the underlying conduct will negatively affect your ability to do the job or will cause harm to people, property, or business operations. And the employer has to consider and document its evaluation of six specific factors:

The seriousness of the conduct.
The number and types of convictions.
The time elapsed since the conviction, not counting periods of incarceration.
Any verifiable evidence of rehabilitation, including good conduct, work experience, education, or training.
The duties of the position.
The work environment where the job is performed.

Notice, Waiting Period, and Written Decision

Before withdrawing a conditional offer or taking other adverse action, the employer must notify you and identify the specific record the decision is based on. The employer then has to hold the position open for at least two business days so you have a reasonable chance to correct errors, explain the circumstances, or present evidence of rehabilitation.¹ If the employer combines this notice with the federal Fair Credit Reporting Act pre-adverse action process, the waiting period extends to at least five business days.

If the employer proceeds with the rejection, it must give you a written decision. A form letter will not do. The decision has to document the employer’s reasoning, its assessment of each of the six factors, its evaluation of how the conviction affects the position, and its consideration of anything you provided in response to the initial notice.¹ That written decision is what you would attach to a complaint.

Jobs That Are Exempt

Some positions and employers can ask about criminal history before a conditional offer because other laws already require background checks for the role. The exemptions cover:

Law enforcement and criminal justice agencies, including police departments, prosecutors’ offices, and correctional facilities.
Any position with unsupervised access to children under 18, vulnerable adults, or vulnerable persons as defined in state law.
Financial institutions and securities firms required by federal or state law to conduct criminal background checks.
Any position where a separate federal or state law mandates a criminal history inquiry.
Federal contract positions where the contract bars individuals with criminal records from working on it.

Healthcare workers subject to state credentialing, commercial drivers regulated by federal transportation rules, and school employees covered by mandatory child-safety checks all fall under these carve-outs.² If you are applying for one of these roles, the employer can legally ask about your record from the start.

Filing a Complaint

The Washington Attorney General’s office is the sole enforcement authority for the Fair Chance Act. Anyone can file a complaint, not just the applicant who was directly affected.³ If you spot a job posting that says “no criminal background” or find out an employer is running background checks before extending conditional offers, you can report it even if you never applied.

Complaints can be submitted through the online form on the Attorney General’s Fair Chance Act webpage, by email at fairchancejobs@atg.wa.gov, or by phone at (833) 660-4877.⁴ You do not need to gather all your evidence before reaching out. Details like the employer’s name, the date of the incident, and copies of any problematic postings or application forms will strengthen the complaint, but the office will follow up with you regardless.

The Attorney General has broad authority to investigate, issue civil investigative demands for documents and testimony, and pursue administrative penalties or court action.⁵ Under the amended penalty schedule, maximum fines are:

Up to $1,500 for a first violation, which the office may waive in favor of a warning for first-time or minor violations.
Up to $3,000 for a second violation.
Up to $15,000 for a third and each subsequent violation.

Penalties are assessed per affected applicant or employee for each violation, and the money goes to the aggrieved person rather than into a general fund. When no specific individual was harmed, as with a discriminatory job posting, the Attorney General keeps the penalty.⁵

One important boundary: the Act does not create a private right of action. You cannot sue an employer directly for a violation of the state law or seek personal damages in court under this statute.² The Attorney General’s enforcement process is the exclusive remedy under the Act itself.

Retaliation Is Prohibited

An employer cannot fire, discipline, demote, or take any other adverse action against an employee who reports a Fair Chance Act violation in good faith, whether the report goes to the employer, the Attorney General, a labor organization, or anyone else.¹ Someone acting on an employee’s behalf is equally protected. Ask a coworker to file a complaint for you, and the employer cannot punish either of you.

Related Federal Claims

Because the state law does not let you sue directly, federal law is where a private lawsuit may still live. Two frameworks matter.

The federal Fair Credit Reporting Act governs employer use of third-party background reports. Before running a report, the employer must give you a standalone written disclosure and get your written authorization.⁶ If the employer decides to reject you based on the report, it has to send a pre-adverse action notice with a copy of the report and a summary of your rights, wait a reasonable period, then send a final adverse action notice. Willful FCRA violations expose the employer to statutory damages of $100 to $1,000 per violation, plus potential punitive damages and attorney’s fees, and you can sue directly in federal court.⁷

Title VII of the Civil Rights Act of 1964 prohibits employment practices that disproportionately screen out applicants by race or national origin unless the practice is job-related and consistent with business necessity. Because criminal records disproportionately affect certain racial groups, blanket exclusion policies can trigger disparate-impact claims. The EEOC’s guidance evaluates criminal records using the nature and gravity of the offense, the time elapsed, and the nature of the job.⁸ Title VII claims go through the EEOC, not the state Attorney General, and can result in a federal lawsuit with compensatory and punitive damages.

Local Ordinances May Add Protections

The state law sets a floor. Cities and counties can adopt ordinances that offer stronger protections for applicants with criminal records, and several Washington cities have done so. A local rule that offers weaker protection than the state Act is unenforceable.² If you are applying in a city with its own fair-chance ordinance, check the local rules for added requirements. The more protective standard is the one that applies.

1
Washington State Legislature. Washington Code 49.94.010 – Inquiries About Criminal Records, Timing, Advertisements, Exceptions
2
Washington State Legislature. Washington Code 49.94 – Employees and Job Applicants, Criminal Records
3
Washington State Office of the Attorney General. Fair Chance Act
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Washington State Attorney General’s Office. Washington Fair Chance Act
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Washington State Legislature. Washington Code 49.94.030 – Attorney Generals Enforcement Powers, Penalties
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Office of the Law Revision Counsel. 15 USC 1681b – Permissible Purposes of Consumer Reports
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Office of the Law Revision Counsel. 15 USC 1681n – Civil Liability for Willful Noncompliance
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U.S. Equal Employment Opportunity Commission. Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII