Washington State Background Check Laws: Compliance Guide for Employers in 2026

Understanding Washington's Layered Background Check Framework

Washington state background check laws operate through multiple jurisdictional layers that apply based on where work will be performed, not where hiring decisions are made. The statewide Fair Chance Act establishes baseline protections, while municipalities like Seattle impose additional requirements within their geographic boundaries.

Employers hiring across multiple locations must identify which combination of rules governs each position and build workflows that satisfy the most restrictive applicable standard.

Washington Fair Chance Act: Statewide Baseline

The Fair Chance Act restricts when and how most employers may inquire about or consider criminal history during hiring. Key provisions include:

The Act does not prohibit background checks. It regulates the sequence of hiring steps, requiring employers to evaluate qualifications and fit before introducing criminal history into the decision process. After making a conditional offer, employers may conduct checks and consider results, but must follow specific procedural steps if findings may lead to withdrawal of the offer.

Statutory Exceptions and Carve-Outs

Certain positions fall outside the Fair Chance Act's scope. Law enforcement roles, positions with access to sensitive populations, and jobs where federal or state law mandates criminal history screening may conduct inquiries earlier in the hiring process. However, employers must verify that an exception applies rather than assume eligibility based on general job duties.

Misclassifying a position as exempt creates liability exposure if the role does not meet statutory criteria. Volunteer positions, independent contractors, and internal transfers within the same organization typically fall outside the Act's coverage. Employers restructuring roles or converting contractors to employees should consult legal counsel to determine whether Fair Chance Act obligations apply to the new employment relationship.

Seattle Fair Chance Employment Ordinance: Municipal Layer

Seattle's ordinance adds requirements for employers hiring workers who will perform work within city limits. The ordinance mirrors the state's conditional offer timing rule but imposes stricter procedures when employers consider disqualifying candidates based on criminal history.

Seattle employers must provide written individualized assessments explaining how specific convictions relate to job responsibilities and allow candidates to submit evidence of rehabilitation or mitigating circumstances before finalizing adverse decisions. The ordinance also establishes minimum waiting periods between providing pre-adverse action notices and making final decisions. This pause allows candidates time to respond with context or corrective information.

Determining Applicable Jurisdiction

Compliance begins with identifying which laws govern each hiring decision:

• Seattle-based positions: Both state and Seattle ordinances apply
• Other Washington locations: Only the state Fair Chance Act governs
• Remote positions with Seattle travel: Requires case-by-case analysis based on where the employee will be "based" rather than temporary work locations

Multi-location employers should implement jurisdiction tagging systems that flag which rules apply to each job posting. Relying on company-wide policies that do not account for geographic variation creates gaps where Seattle-specific obligations are missed.

Criminal History Inquiry Timing and Process

Washington state background check laws restructure the hiring sequence to delay criminal history considerations until qualification assessments are complete. This timing framework applies to all forms of inquiry.

Pre-Offer Prohibition Period

Before making a conditional offer, employers may not ask about criminal history in any format:

• Application forms must omit checkbox questions about convictions
• Interview scripts cannot include questions about arrests, charges, or time gaps that indirectly elicit criminal history information
• Third-party recruiters and staffing agencies acting on behalf of covered employers must also comply with timing restrictions

Some employers attempt to satisfy the rule by asking about criminal history only "if relevant to the position." This approach does not comply. The prohibition is categorical during the pre-offer stage, regardless of job duties or perceived relevance.

Conditional Offer Definition

A conditional offer is a preliminary commitment to hire pending satisfactory completion of background checks, reference verification, or other post-offer screening. The offer must be specific, including position title, compensation, and start date, even if contingent on screening results.

Generic expressions of interest or invitations to "next steps" do not constitute offers that trigger permission to inquire about criminal history. Employers should document conditional offers in writing and ensure they are communicated before initiating background checks.

Post-Offer Screening Procedures

Blanket disqualification policies that automatically reject candidates with any conviction, or specific categories of convictions, do not satisfy individualized assessment requirements. Each decision must be defensible based on the specific facts of the conviction and the specific requirements of the role.

Arrest and Charge Records

Washington employers generally may not disqualify candidates based solely on arrest records or pending charges that have not resulted in conviction. Arrests reflect accusations, not findings of guilt, and relying on them as disqualifiers creates legal risk.

Exceptions may apply where federal law or specific state regulations mandate consideration of pending charges for certain sensitive roles, but employers should consult legal counsel to verify the legal basis before applying such criteria.

Seattle-Specific Requirements and Enhanced Protections

Seattle's Fair Chance Employment Ordinance establishes additional obligations for employers hiring within city boundaries. These requirements layer on top of state law and apply when the position will be based in Seattle, regardless of where the employer's headquarters or HR functions are located.

Individualized Assessment Mandates

Before withdrawing a conditional offer based on criminal history, Seattle employers must prepare a written individualized assessment. This document must include:

• The specific convictions being considered
• Description of how those convictions relate to job duties
• Identification of any company policies that inform the decision

The assessment must be provided to the candidate along with a copy of the background check report. The individualized assessment is not a formality. It must contain substantive analysis connecting the conviction to legitimate job-related concerns.

Candidate Response Opportunity

After receiving the individualized assessment, candidates have at least five business days to submit additional information. This may include evidence of rehabilitation, certificates of completion from treatment programs, character references, or explanations of circumstances surrounding the conviction. Employers must consider this information before finalizing the decision.

Some candidates may not respond within the window. Employers may proceed with final decisions after the response period expires, but must document that the opportunity was provided and the waiting period observed.

Disclosure and Notice Requirements

Seattle employers must provide specific disclosures at multiple stages. Before requesting authorization to conduct a background check, employers must give candidates a written notice explaining their rights under the ordinance, including the right to submit mitigating information and the prohibition on arrest-based disqualifications.

Record Retention Obligations

Seattle employers must retain documentation of individualized assessments, candidate responses, and final decision rationale for at least three years. These records serve as evidence of compliance during audits or enforcement proceedings.

Employers should implement systems that automatically capture and store these documents as part of the hiring workflow rather than relying on manual filing.

Washington State Salary History Ban

Washington law prohibits employers from asking about salary history or relying on compensation history when setting pay for new hires. This restriction applies throughout the hiring process and continues after employment begins.

Prohibited Inquiries

Employers may not ask candidates about current or past salaries, bonuses, benefits, or other compensation. The prohibition applies to:

• Application forms
• Interviews
• Background checks
• Third-party inquiries through recruiters or references
• Direct questions and indirect methods such as requiring pay stubs or W-2 forms

If a candidate voluntarily discloses salary history without prompting, employers may not rely on that information when determining compensation for the position. The prohibition extends to using disclosed information even when candidates offer it unsolicited.

Compensation Transparency Requirements

While employers cannot ask what candidates earned previously, they must provide salary range information when requested. If a candidate asks about the pay range for a position after an initial interview, employers must disclose the range they reasonably expect to pay.

This transparency requirement encourages pay decisions based on role requirements and market data rather than individual negotiation leverage.

Application Review and Scrubbing

HR teams should audit application forms, Applicant Tracking System templates, and interview guides to identify and remove salary history questions. Common violations include:

• Fields asking for "salary expectations"
• "Current compensation" questions
• "Reason for leaving" when the expected answer relates to pay dissatisfaction

Interview training should emphasize that salary history is off-limits even in casual conversation.

Adverse Action Procedures Under FCRA and State Law

When criminal history findings lead to adverse employment decisions, employers must comply with both federal Fair Credit Reporting Act procedures and Washington state-specific requirements.

Pre-Adverse Action Notices

Before taking adverse action based on information in a background check report, employers must provide the candidate with a pre-adverse action notice, a copy of the report, and a summary of rights under the FCRA. This notice gives candidates an opportunity to identify and dispute inaccurate information before the decision becomes final.

Washington's Fair Chance Act and Seattle's ordinance add timing and content requirements to this process. Employers must explain which convictions are being considered, how they relate to the job, and provide a meaningful opportunity to respond with mitigating information.

Individualized Assessment Integration

The FCRA notice period and the individualized assessment response period should be coordinated but are distinct obligations. Some employers satisfy both by providing the FCRA-required documents along with the individualized assessment in a single communication, then observing the longer of the required waiting periods before finalizing the decision.

Clear communication prevents confusion about which deadlines apply and what information candidates should submit. Notices should specify whether the candidate is responding to report accuracy concerns, providing mitigating context, or both.

Final Adverse Action Notices

If the employer proceeds with the adverse decision after the waiting period, a final adverse action notice is required. This notice must inform the candidate of the decision, identify the background check provider, and explain the candidate's right to dispute the report's accuracy with the provider.

Seattle employers must also explain the specific basis for the decision and how it relates to job responsibilities. Documentation of this process is critical. Employers should retain copies of all notices, candidate responses, decision rationale, and timing logs to demonstrate compliance during audits or litigation.

Common Compliance Gaps and Liability Triggers

Even employers with formal background check policies often encounter compliance failures during implementation. These gaps typically arise from misunderstanding timing rules, misapplying exceptions, or allowing informal practices that contradict written procedures.

Application Form Holdovers

Legacy application forms frequently contain criminal history questions that violate current law. When companies update applicant tracking systems, migrate to new platforms, or revise branding, old templates sometimes persist. Regular audits should confirm that no active application pathway includes prohibited questions.

Interview Script Drift

Hiring managers may ask about criminal history during interviews even when application forms comply with the law:

• Interviewers are unfamiliar with legal restrictions
• Conversational interviews lead to questions about resume gaps, references, or background
• Training does not include specific examples of prohibited questions

Interview training should include specific examples of prohibited questions and compliant alternatives.

Third-Party Vendor Misalignment

Background check providers, staffing agencies, and recruitment firms must also comply with Washington timing restrictions when acting on behalf of covered employers. Contracts should specify compliance obligations and vendors should confirm they will not initiate checks or inquiries before the employer provides documentation of a conditional offer.

Exception Over-Application

Employers sometimes classify positions as exempt from Fair Chance Act timing rules based on general industry norms rather than statutory criteria. Security roles, financial positions, and jobs involving vulnerable populations are not automatically exempt.

The exception must be grounded in a specific legal requirement mandating early criminal history screening. Employers should verify exemption eligibility with legal counsel rather than relying on general assumptions.

Geographic Confusion in Multi-State Operations

Companies operating in multiple states sometimes apply the least restrictive standard across all locations or assume federal law preempts state requirements. Washington law applies to positions worked in Washington regardless of where the employer is headquartered or incorporated.

Compliance systems must route hiring decisions through jurisdiction-specific workflows based on work location.

Building Compliant Hiring Workflows

Operationalizing Washington state background check laws requires translating statutory timing and procedural rules into hiring system design, role definitions, and training protocols.

Conditional Offer Trigger Points

Hiring workflows should include a formal conditional offer stage that occurs after candidate evaluation but before background screening:

• Document the offer in writing
• Communicate to the candidate
• Log in the applicant tracking system
• Automated triggers prevent background check requests until conditional offer is recorded

Role-Based Screening Protocols

Not all positions require the same depth or type of background screening. Employers should develop screening matrices that specify which checks apply to which roles, document the business justification for each screening component, and confirm that any enhanced screening for specific roles is legally required or demonstrably job-related.

Criminal history relevance assessments should be conducted at the role level, not the candidate level. Before posting a position, employers should identify which convictions, if any, would be disqualifying and document the relationship between those convictions and job duties.

Training and Communication Systems

Hiring managers, recruiters, and HR personnel must understand timing rules, prohibited inquiries, and individualized assessment requirements. Training should include scenario-based examples, question scripts for interviews, and escalation procedures when ambiguous situations arise.

Documentation and Audit Trails

Compliance depends on being able to demonstrate that procedures were followed. Systems should automatically capture:

• Conditional offer dates
• Background check request dates
• Report receipt dates
• Notice delivery dates
• Candidate response submission dates
• Final decision dates

These timestamps prove timing compliance and support defensibility during investigations. Written individualized assessments, candidate responses, and decision rationale should be stored with the candidate's file and retained according to record retention schedules.

Conclusion

Washington state background check laws require employers to sequence hiring steps carefully, conduct individualized assessments when criminal history is considered, and comply with both state and municipal rules based on work location. Compliance depends on designing workflows that delay criminal history inquiries until after conditional offers, document decision rationale, and provide candidates with meaningful opportunities to respond before adverse action is finalized.

Frequently Asked Questions

When can Washington employers ask about criminal history during the hiring process?

Employers may ask about criminal history only after making a conditional offer of employment. The offer must be specific and documented before any inquiry occurs. Exceptions apply to certain positions where federal or state law requires earlier screening, but employers should verify the exception applies with legal counsel.

Does Seattle's Fair Chance Employment Ordinance apply to remote positions?

The ordinance applies to positions where work will be performed primarily in Seattle. If a remote employee is based in Seattle and works from a Seattle location, the ordinance likely applies. Occasional travel to Seattle for meetings does not typically trigger coverage for employees based elsewhere.

Can Washington employers ask about arrests that did not result in conviction?

Generally, no. Employers may not disqualify candidates based solely on arrests or pending charges without conviction. Exceptions may apply when federal law or specific state regulations require consideration of pending charges for certain roles, but such exceptions should be verified with legal counsel.

What is an individualized assessment under Seattle law?

An individualized assessment is a written analysis explaining which specific convictions are being considered, how those convictions relate to job responsibilities, and why they justify withdrawal of a conditional offer. It must be provided to the candidate along with an opportunity to respond with mitigating information.

Are Washington employers required to disclose salary ranges during hiring?

Yes. When a candidate requests salary range information after an initial interview, employers must disclose the range they reasonably expect to pay for the position. Employers may not ask candidates about their current or past compensation.

How long must Seattle employers wait before finalizing an adverse action based on criminal history?

Seattle employers must provide at least five business days for candidates to respond with mitigating information after receiving an individualized assessment. Employers should not finalize adverse decisions until the response period has expired and any submitted information has been considered.

Do background check timing rules apply to internal promotions?

Internal promotions and transfers within the same organization typically fall outside Fair Chance Act coverage. However, if the promotion involves a role with specific screening requirements, employers should verify whether the movement qualifies as a new hiring decision subject to timing rules.

What happens if a candidate voluntarily discloses salary history during an interview?

Employers may not rely on voluntarily disclosed salary history when setting compensation, even if the candidate offers the information without prompting. Washington's salary history ban prohibits use of compensation history regardless of how it was obtained.

Additional Resources

1. Washington State Fair Chance Act Overview
   https://www.lni.wa.gov/workers-rights/workplace-policies/fair-chance-act
2. Seattle Fair Chance Employment Ordinance
   https://www.seattle.gov/laborstandards/ordinances/fair-chance-employment
3. Washington State Salary History Ban Information
   https://www.lni.wa.gov/workers-rights/wages/equal-pay-opportunities-act
4. Federal Trade Commission FCRA Guidance
   https://www.ftc.gov/enforcement/statutes/fair-credit-reporting-act
5. Washington State Human Rights Commission Employment Resources
   https://www.hum.wa.gov/employment