['Recruiting and hiring']
['Negligent Hiring / Retention']
04/26/2024
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Summary of differences between federal and state regulations
Employer immunity from disclosure claims
Before July 24, 2005:
- Both the federal and state requirements do not cover employer immunity from disclosure claims, relating to communications between employers/former employers and prospective employers.
On and after July 24, 2005:
- In Washington state, an employer/former employer may disclose to a prospective employer/employment agency, upon request, information on employee/former employee job performance; diligence, skill, or reliability relating to job duties; or illegal/wrongful acts relating to job duties, unless he/she is not acting in good faith. An employer/former employer may be liable for disclosures not made in good faith. Lack of good faith may be shown if the employer/former employer discloses information that is knowingly false, knowingly misleading, and reckless. Employers/Former employers must document in the employee/former employee’s personnel file the identity of the entity that received such disclosure, keep this identity record for two years, and allow the employee/former employee to inspect the record upon request.
Currently, upon written request of a former employee, an employer must provide to the former employee within 10 days of the request a signed, written statement containing the reasons and effective date of discharge. An employer must also, upon request, make available to an employee at a reasonable time a record of the employee’s name, address, and occupation, employment dates, pay rate(s), amount paid each pay period, and hours worked.
Willfully and maliciously sending a written statement to anyone in order to prevent a person from obtaining or keeping employment and willfully and maliciously blacklisting a person is a crime.
Arrest record inquiries
In Washington, an employer may ask about arrests if it asks whether the charges are pending, dismissed, or led to conviction that would affect job performance, and whether it occurred in the last 10 years. Exceptions to this requirement are listed at WAC 162-12-140 for certain positions. Also, an employer may skip this requirement if there is a bona fide job qualification, a voluntary affirmative action plan, or a federal requirement; however, the employer must provide the applicant with a written explanation of the purpose of the question(s).
Washington’s requirements are not comparable to the EEOC’s Notice N-915-061, which says, “Where it appears that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent, exclusion is justified.” According to the Notice, the employer must evaluate whether the arrest record reflects the applicant’s conduct. It should, therefore, examine the surrounding circumstances, offer the applicant or employee an opportunity to explain, and, if he or she denies engaging in the conduct, make the follow-up inquiries necessary to evaluate his/her credibility. Since using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engaged in the conduct for which he/she was arrested and that conduct is job-related, the EEOC concludes that an employer will seldom be able to justify making broad general inquiries about an employee’s or applicant’s arrests. Since business justification rests on issues of job relatedness and credibility, a blanket exclusion of people with arrest records will almost never withstand scrutiny, according to Notice N-915-061.
Conviction record inquiries
In Washington, an employer may ask about convictions only if there is a justifying business necessity because the offenses are job-related and the offenses (or prison release) occurred in the last 10 years. Exceptions to this requirement are listed at WAC 162-12-140 for certain positions. Also, an employer may skip this requirement if there is a bona fide job qualification, a voluntary affirmative action plan, or a federal requirement; however, the employer must provide the applicant with a written explanation of the purpose of the question(s). An employer may not ask about convictions that are not job-related or are over 10 years old.
With some exceptions, the Washington State Patrol must furnish conviction records to employers upon request, for:
- Evaluations of applicants and employees for positions that may have access to valuable items, money, trade secrets, confidential/proprietary information, and national security information; and
- Employee misconduct investigations for possible penal offenses.
An employer that receives conviction records from the Washington State Patrol must notify the applicant/employee within 30 days of receipt of the record or when an investigation is completed. The employer must notify the applicant/employee that he/she may examine the records.
Applicants/Employees whose conviction has been vacated may state that he/she has not been convicted of the crime.
Washington public employers may consider convictions, but may not deny an applicant/employee for employment based on a felony conviction, unless the felony offense relates to the job and it occurred within the last 10 years. There are exceptions for county treasurer’s offices, schools, and certain facilities with children.
Washington’s requirements are different than the EEOC’s Notice N-915, which says, “Where there is evidence of adverse impact, an absolute bar to employment based on the mere fact that the individual has a conviction record is unlawful under Title VII of the Civil Rights Act of 1964, as amended].” According to Notice N-915, an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records is unlawful under Title VII of the Civil Rights Act of 1964 in the absence of a justifying business necessity. To determine whether an employer’s decision was justified by business necessity, he/she must show that he/she considered three factors:
- The nature and gravity of the offense or offenses;
- The time that has passed since the conviction and/or completion of the sentence; and
- The nature of the job held or sought.
State
Contacts
Employer immunity from disclosure claims
Washington Legislative Information Center
Washington Department of Labor and Industries
Arrest record inquiries
Washington State Human Rights Commission
Conviction record inquiries
Washington Department of Corrections
Washington State Human Rights Commission
State regulations
Employer immunity from disclosure claims
Revised Code of Washington 49.44.010, Blacklisting—Penalty
Washington Administrative Code 296-126-050, Employment records
House Bill 1625, Employee information disclosure – employer immunity (signed 4/21/05; effective 7/24/05)
Arrest record inquiries
Washington Administrative Code, 162-12-140, Preemployment inquiries
Conviction record inquiries
Revised Code of Washington 9.94A.640, Vacation of offender’s record of conviction
Revised Code of Washington 9.96.060, Misdemeanor offenses—Vacating records
Revised Code of Washington 9.96A.020, Employment, occupational licensing by public entity—Prior felony conviction no disqualification—Exceptions
Revised Code of Washington 43.43.815, Conviction record furnished to employer—Purposes—Notification to subject of record—Fees—Limitations—Injunctive relief, damages, attorneys’ fees—Disclaimer of liability—Rules
Washington Administrative Code, 162-12-140, Preemployment inquiries
Federal
Contacts
Employer immunity from disclosure claims
None.
Arrest record inquiries
Equal Employment Opportunity Commission (EEOC)
Conviction record inquiries
Equal Employment Opportunity Commission (EEOC)
Regulations
Employer immunity from disclosure claims
None.
Arrest record inquiries
None; however, EEOC published Notice N-915-061, September 7, 1990, "Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
Conviction record inquiries
None; however, EEOC published Notice N-915, February 4, 1987, "Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)."
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