Employees with Criminal Records are Entitled to a Fair Chance

There has been a growing consensus that people with criminal records are entitled to fair opportunities as they reenter society. To that end, legislatures across the country have passed Fair Chance or “Second Chance” laws that give individuals with criminal records opportunities to find housing and employment in spite of the stigma that their criminal records might have. In 2018, the Washington legislature passed the Washington Fair Chance Act, RCW 49.94, and joined with the legislatures of California, Colorado, Illinois, and New York to announce that removing barriers to employment for individuals with criminal records is the public policy of the State of Washington. Five years earlier, the City of Seattle had announced a similar public policy in the enactment of Seattle’s Fair Chance Employment Ordinance, SMC 14.17, which went into effect on November 1, 2013.

With very few exceptions, the Seattle ordinance prohibits employers from refusing to hire an applicant or in taking adverse employment action such as demotion of termination based upon an employee’s criminal history unless there is a legitimate business reason. For a legitimate business reason to exist, the employee’s criminal history must actually impact the employee’s ability to do the job, or the criminal history must pose a reasonable risk or harm or injury. Further, the ordinance requires employers to give a minimum two-days’ notice to an employee of their intention to take adverse employment action against the employee and to affirmatively identify to the employee the records on which they are relying to give the employee to explain or correct that record or information. Violations of the ordinance are investigated by the Seattle Office of Labor Standards, and employers who violate the ordinance are liable for unpaid wages, liquidated damages, penalties, and the City’s attorneys’ fees incurred in enforcing the ordinance. Additionally, the employee who was wrongfully terminated is entitled to reinstatement.

While the Washington Fair Chance Act and the Seattle Fair Chance Employment Ordinance are limited to enforcement by the city and state governments, Washington courts have long recognized the right of an employee to pursue a cause of action for wrongful discharge in violation of public policy. Because giving individuals with criminal records a fair opportunity to be gainfully employed is the stated public policy of the State of Washington, violations of the Fair Chance Act or the Fair Chance Employment Ordinance would jeopardize that clear legislative mandate, thus giving rise to a cause of action for wrongful discharge.