Hunton Retail Law Resource

In June, new laws will go into effect that restrict employers’ ability to request and use criminal history information about applicants in three jurisdictions: Kansas City, Missouri; the State of Washington; and the city of Spokane, Washington. Below are summaries of the new restrictions and links to the laws.

Kansas City, Missouri

Effective June 9, 2018, new Ordinance Section 38-104 provides that employers employing six or more employees may not:

• inquire about an applicant’s criminal history until after they determine the individual is otherwise qualified for the position and the applicant has been interviewed for the position (the inquiry must be made of all applicants in the final selection pool); or
• base hiring or promotional decisions on an individual’s criminal history or related sentencing unless they can demonstrate that the decision was based on all information available, including consideration of the frequency, recentness and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the position.

Employers who are required by law or regulation to exclude from employment applicants with certain criminal convictions are exempt from these requirements.

“Criminal history” is defined by the new law as (1) a record of a conviction, or a plea of guilty or no contest, to a violation of a federal or state criminal statute or municipal ordinance; (2) records of arrests not followed by a valid conviction; (3) convictions which have been, pursuant to law, annulled or expunged; (4) pleas of guilty without conviction; (5) convictions for which a person received a suspended imposition of sentence; and (6) misdemeanor convictions where no jail sentence can be imposed.

Washington State

Effective June 7, 2018, a new law provides that employers may not:

• ask on an employment application, orally or in writing, or receive information about an applicant’s criminal record until after initially determining that the applicant is otherwise qualified for the position;
• advertise open jobs in a way that excludes people with criminal records from applying, such as by stating “no felons,” “no criminal background” or similar messages; or
• implement any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration before determining that the applicant is otherwise qualified for the position (this includes rejecting an applicant for failing to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position).

There are exceptions for employers hiring for positions that will involve unsupervised access to children and certain vulnerable adults, those who are expressly permitted or required by law to inquire about arrest or conviction record for employment purposes, and where background checks are specifically permitted or required by law, among other things.

“Otherwise qualified” is defined by the new law as the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.

“Criminal record” is defined by the new law as including any record about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not the case resulted in a finding of guilt.

Spokane, Washington

Effective June 14, 2018, new Ordinance No. C-35564 provides that employers acting directly or indirectly in the Spokane city limits may not:

• advertise open jobs in a way that excludes people with arrest or conviction records from applying, which includes stating “no felons,” “no criminal background” or similar messages (but, employers may advertise that a criminal history inquiry and/or background check will be done during or after the interview process as long as such advertisement does not state that an arrest or conviction record will automatically preclude the applicant from consideration for employment);
• ask on the application, orally or in writing, about an applicant’s arrest or conviction record, or receive information through a criminal history background check, or otherwise obtain information about an applicant’s arrest or conviction record prior to an in-person, telephonic or video interview or to making a conditional offer of employment;
• use, distribute or disseminate an applicant’s or employee’s arrest or conviction record except as required or otherwise allowed by law;
• disqualify an applicant prior to an in-person, telephonic or video interview solely because of a prior arrest or conviction (unless the conviction is related to significant duties of the job or disqualification is otherwise allowed by this chapter); or
• reject or disqualify an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.

There are exceptions for employers hiring for positions that will involve unsupervised access to children and certain vulnerable adults, those who are expressly permitted or required by law to inquire about arrest or conviction record for employment purposes, and where background checks are specifically permitted or required by law, among other things.

“Arrest or Conviction Record” is defined by the new law as any record or information about a citation or arrest for criminal conduct, including records relating to probable cause to arrest, and includes any record about a criminal or juvenile case filed with any court, whether or not such a case resulted in a finding of guilt, has been vacated, or overturned on appeal.