Washington Fair Chance Act Compliance Is Now a Process Problem

Washington employers using criminal background checks have a new compliance reality: the Fair Chance Act is no longer just about removing the box from an application. It is now a carefully sequenced hiring and promotion process. The Attorney General’s implementation guidance makes clear that employers need to control when they learn about criminal history, how they evaluate it, and what they give an applicant before making a final decision. For employers with 15 or more employees, the expanded requirements have already been in effect since July 1, 2026. Employers with fewer than 15 employees need to be ready by January 1, 2027.

The most important operational change is timing. With limited exceptions, an employer cannot ask about, receive, or obtain criminal history until it has determined that the individual is otherwise qualified and made a conditional offer. That rule reaches more than the application form. It affects interview scripts, recruiter conversations, online searches, background-check triggers, applicant-tracking workflows, and vendor instructions. A recruiter who casually asks an applicant to explain a past charge too early can create a compliance problem before the organization ever orders a report.

The law also creates a structured pre-adverse-action process. If an employer is considering rejecting an applicant or denying a promotion based on criminal history, it must identify the record at issue and keep the position open for at least two business days. During that time, the individual can provide information about errors, rehabilitation, or circumstances surrounding the record. The employer must then issue a written decision that documents its reasoning and consideration of the required factors. A generic letter saying that the applicant did not meet company standards will not do the job.

Washington also limits which information employers may use. Juvenile convictions and most nonpending adult arrest records are off limits. An adult conviction cannot be the sole reason for an adverse decision unless the employer has a legitimate business reason. The statute contains exceptions for certain jobs involving unsupervised access to vulnerable people, law enforcement, securities, legally required checks, and certain federal-contract work. Employers should not assume an exception applies simply because a role is sensitive or customer-facing.

The best next step is a multistate background-check audit. Employers should map the process from job posting through final decision, then identify every moment criminal-history information can enter the process. Update Washington forms, recruiter training, automated workflow rules, and vendor service-level agreements. Build the two-business-day hold and written decision into the system, not into a manager’s memory. Finally, retain the assessment and the applicant’s response materials. A defensible process is not glamorous, but neither is explaining to an agency why the process never happened.

Washington’s expanded law is a reminder that fair-chance compliance is no longer a single policy paragraph. It is a hiring-system design issue. Organizations that treat it that way will be better positioned to make job-related decisions while reducing avoidable risk. HR leaders should also establish a clear escalation path for unusual records or claimed exceptions, so a rushed hiring decision does not bypass the required review.

Lisa Smith, SPHR, SCP