Washington ban-the-box law: the Fair Chance Act after the 2025 changes

Washington's Fair Chance Act, RCW 49.94, bars employers, including temporary staffing and placement agencies, from asking about, receiving a background check on, or otherwise obtaining an applicant's criminal record until they have decided the person is otherwise qualified and made a conditional offer. Amendments passed in 2025 tightened the law: they have applied to employers with 15 or more employees since July 1, 2026, and reach smaller employers on January 1, 2027. Before rejecting someone because of an adult conviction, the employer needs a documented legitimate business reason, must give notice and hold the job open at least two business days, and must then issue a written decision.

The statute

Chapter 49.94 RCW was enacted in 2018 (2018 c 38) and amended by 2025 c 71. The core rule in RCW 49.94.010(1): an employer may not include any question on an application, "inquire either orally or in writing, receive information through a criminal history background check, or otherwise obtain information about an applicant's criminal record until after the employer initially determines that the applicant is otherwise qualified for the position and makes an offer of employment conditioned on obtaining the applicant's criminal record."

Other key rules in the same section:

• Ads: no "no felons," "no criminal background" or similar messages (49.94.010(2)).
• No blanket exclusions: no policy that "automatically or categorically" excludes people with a criminal record, and no rejecting an applicant for failing to disclose a record before a conditional offer (49.94.010(3)).
• Arrests and juvenile records: no tangible adverse action based on an arrest record or a juvenile conviction record, except an adult arrest where the person is out on bail or released on personal recognizance pending trial (49.94.010(4)).
• Adult convictions: no tangible adverse action based solely on an adult conviction record without a legitimate business reason (49.94.010(5)).

Who is covered, and when

"Employer" in RCW 49.94.005(4) "includes public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies." There is no minimum size in that definition. The 2025 amendments have staggered dates: the Attorney General's Fair Chance Act page says they take effect on July 1, 2026 for employers with 15 or more employees and January 1, 2027 for employers with fewer than 15. We did not compare the earlier text line by line, so a small employer should confirm with counsel which version governs a hire before 2027.

Exceptions

RCW 49.94.010(7) says the section does not apply to:

• employers hiring someone who will or may have unsupervised access to children under 18, vulnerable adults or vulnerable persons;
• employers, including financial institutions, expressly permitted or required by federal or state law to inquire into or rely on criminal records;
• Washington law enforcement agencies and criminal justice agencies;
• employers seeking nonemployee volunteers;
• entities required to follow the rules of a securities self-regulatory organization; and
• positions under a federal contract that specifically prohibits people with criminal records from working on it.

The legitimate business reason and the notices

A "legitimate business reason" in RCW 49.94.005(6) means the employer believes in good faith, based on what it knows at the time, that the conduct underlying the conviction will negatively affect fitness for the job, or will harm people, property, business reputation or assets, and that it considered and documented these factors:

1. the seriousness of the conduct underlying the conviction;
2. the number and types of convictions;
3. the time elapsed since the conviction, excluding periods of incarceration;
4. verifiable information on rehabilitation, good conduct, work experience, education and training provided by the individual;
5. the specific duties of the position; and
6. the place and manner in which the position will be performed.

Before any tangible adverse action, RCW 49.94.010(5) requires the employer to:

• notify the applicant or employee and identify the record it is relying on;
• hold the position open "for a minimum of two business days" so they can correct or explain the record or provide information on rehabilitation, conduct, work experience, education and training; and
• if it still decides against them, provide "a written decision, including specific documentation as to its reasoning and assessment of each of the relevant factors."

When the candidate volunteers it

RCW 49.94.010(8) allows an employer to tell applicants that the position is subject to a background check after a conditional offer, and allows an applicant to volunteer their record in an interview without being asked. Either disclosure triggers a duty to act "immediately": inform the applicant in writing of the requirements of subsections (1), (3), (4) and (5), and give them the Attorney General's Washington fair chance act guide. That second point is easy to miss. If you say "there's a background check after the offer" on a screen, the written notice and guide follow.

Staffing agencies and recruiters

Temporary staffing agencies and placement, referral and employment agencies are named in the definition of employer, so an agency's own screening is covered. The categorical-exclusion rule also matters on the client side: a client instruction to submit only people without records is the kind of automatic exclusion RCW 49.94.010(3) prohibits. The statute also protects employees who report a suspected violation in good faith (49.94.010(6)).

Penalties and enforcement

The Attorney General's Office enforces the Act (RCW 49.94.030). It may waive penalties for first-time or de minimis violations and give education and a warning instead. Maximum administrative penalties are $1,500 for the first violation, $3,000 for the second and $15,000 for each subsequent violation, imposed per aggrieved applicant, employee or party, and payable to that person. The AG may also sue for unpaid wages, penalties, damages, fees and costs. There is no private right of action (49.94.020(6)). Local laws may be more protective (49.94.020(5)); we did not check city ordinances for this page.

How it fits with FCRA adverse action

RCW 49.94.020(2) says the chapter does not diminish the federal FCRA or Washington's own fair credit reporting act, chapter 19.182 RCW. Where a screening company supplies the report, run the FCRA steps as well: disclosure and authorization, then a pre-adverse action notice with the report and summary of rights, then the final notice. The Washington two business day minimum is shorter than the five business days many employers allow under the FCRA, so use the longer period. See the FCRA background check process and background check notification emails.

Questions to settle with a Washington client at intake

• How many employees does the client have, and so which version of the Act applies before January 1, 2027?
• Will the person have unsupervised access to children, vulnerable adults or vulnerable persons, or does another exception in RCW 49.94.010(7) apply?
• Who decides the candidate is otherwise qualified, and who makes the conditional offer?
• Who sends the notice, holds the job open and writes the decision if a record is a concern?

A script for Washington screens

Candidate volunteers a record: "Thanks for telling me. Criminal history isn't considered until after a conditional offer in Washington, so I won't ask about it or note it. I'll send you a short written summary of how the law works and the Attorney General's guide." Then send both the same day.

Candidate asks about a background check: "If there's a check, it happens only after a conditional offer, and you'd be told what was relied on and given time to explain before any decision." Then send the written notice and guide.

A Washington checklist for recruiting desks

1. Remove criminal history questions and "no felons" wording from applications, ads and screening questions.
2. Do not order or receive background checks until the candidate is found otherwise qualified and has a conditional offer.
3. Keep a template written notice of the Act's requirements and the AG's guide ready to send the moment a disclosure happens.
4. Refuse blanket "no records" client instructions and document the conversation.
5. Keep volunteered information out of notes and submittals. See what not to write in interview notes.
6. For federal background and general scripts, see ban-the-box laws and interview questions.