Seattle City Council Considering Controversial and Restrictive Criminal Background Check Ordinance

The Seattle City Council is reviewing a proposed ordinance, sponsored by Councilman Bruce Harrell, which would significantly restrict an employer’s ability to consider the criminal backgrounds of job applicants and employees. Entitled “Job Assistance Legislation,” this proposed ordinance prohibits employers from inquiring about criminal history information on prospective new employees before extending a conditional offer of employment, with limited exceptions.

The proposed ordinance also prohibits employers from taking adverse employment action against job applicants or employees based on the applicant’s or employee’s conviction records or pending criminal charges, unless there is a “direct relationship” between the criminal history and the employment sought or held.

Although many Seattle-area employers are unaware of this proposed ordinance, it is controversial and has already generated significant concerns. Among these concerns are the following:

• If passed, the ordinance will limit employers from using their best judgment to decide who to hire, retain, or promote, and what criteria to base those decisions on.
• If passed, the ordinance will present employers with a Catch-22: If employers consider criminal histories when making employment decisions, they may face litigation under the proposed ordinance; if they do not consider such information, they may face negligent hiring or supervision lawsuits if an employee with a criminal history engages in improper conduct.
• If passed, the ordinance, in effect, will create a new protected class, namely, arrested or convicted criminals (regardless of race, gender, or the like). Thus, for example, protection would be extend to Caucasian criminals, despite the lack of statistical evidence that such class members suffer disproportionately unfair treatment in terms of arrest and prosecution for alleged criminal behavior.
• If passed, the ordinance will harm Seattle’s economy by creating more regulatory burdens for new and existing employers. As Seattle continues to add Seattle-specific employment laws, including the recently enacted Paid Sick and Safe Leave ordinance, employers considering expansion into Seattle may decide to expand elsewhere instead, and current Seattle employers may decide to move to other cities or regions with less onerous, unique, and intrusive regulatory burdens.
• The EEOC recently revised its guidance on pre-employment inquiries on criminal history. To the extent a Seattle ordinance, and its implementing rules, are different from the EEOC’s guidance, employers covered by both will once again have to commit additional resources to comply with overlapping and possibly contradictory requirements and definitions.
• As proposed, the ordinance is incomplete. The scope and administration of the ordinance’s broad principles will be left to the Seattle Office of Civil Rights rulemaking process. There is little to no indication as to what those rules may look like.

The ordinance is pending before the Public Safety, Civil Rights, and Technology Committee, which is widely believed to be ready to approve the ordinance as early as December 2012. Once the ordinance passes in committee, it will move to the full City Council for a vote, which could come quickly thereafter. Business groups, including the Seattle Chamber of Commerce, are coordinating the opposition to the proposed ordinance in its current form.

Businesses and employers seeking further information regarding the Chamber’s efforts may contact George Allen, the Chamber’s senior vice president of government relations, at (206) 389-7268 or email at georgea@seattlechamber.com.