Preemployment Inquiries Law Summaries
Washington, Preemployment Inquiries Law Summaries
The state's general preemployment inquiries provisions are located in the Washington Administrative Code.
There are several laws in Washington pertaining to criminal background checks in employment. Volunteer personnel of school districts are required to undergo a criminal background check (Title 28A, Ch. 28A.320, Sec. 28A.320.155). The provisions relating to background checks of personnel in school and educational service districts are located at Title 28A, Ch. 28A.400, Secs. 28A.400.303, 28A.400.304 and 28A.400.320.
The law relating to the issuance of employment and occupational licenses and the employment of personnel by public entities is located at Title 9, Ch. 9.96A, Sec. 9.96A.020. Various public employers require applicants to undergo a criminal background check as a condition of employment. This law is located at Title 43, Ch. 43.43, Secs. 43.43.815, 43.43.830-43.43.836, and 43.43.838-43.43.845.
The state's service letter requirements are located in the Washington Administrative Code, Title 296, Ch. 126, and the state also has a job reference liability law (Ch. 103 (H. 1625), L. 2005, effective July 24, 2005), and a law relating to the use of consumer reports for employment purposes.
Except as otherwise provided, references are to the Revised Code of Washington. For full text of these laws, see Employment Practices Guide ¶50-23,600.01 et seq.
WHAT THE EMPLOYER MUST DO
Employers may not make any inquiry in connection with prospective employment that expresses any limitation, specification or discrimination as to age, sex, marital status (see also ¶49-3200 ), sexual orientation, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability (Sec. 49.60.180, as amended by H. 2661, L. 2005, enacted January 31, 2006).
Inquiries that convey to a reasonable person that applicants in a protected class will be discriminated against are prohibited whether or not they are connected to a discriminatory purpose (WAC 162-12-120(1), as amended effective January 21, 2000).
Any preemployment inquiry or the keeping of any record of protected status before employment for a discriminatory purpose is prohibited and may be evidence of an unfair practice when connected to the applicant's protected status unless the particular quality inquired about is a bona fide occupational qualification (WAC 162-12-130, as amended effective January 21, 2000).
The law recognizes an exception to unfair preemployment inquiries when the inquiries are based upon a bona fide occupational qualification (WAC 162-12-135, as amended effective January 21, 2000).
An employer may ask applicants about protected status to the extent that the employer is required to do so by the state or the U.S. government or a federal or state court decree. When the applicant data are required by the court or government, the information must be acquired by means other than inquiry to the applicants, unless the court or government expressly requires the inquiries or unless the inquiries are made in conformity with WAC 162-12-160 and 162-12-170 (below) (WAC 162-12-150, as amended effective January 21, 2000).
An employer may make inquiries as to race, sex, national origin or disability for purposes of affirmative action when the inquiries are made in the manner provided in WAC 162-12-170 (below) (WAC 162-12-160, as amended effective January 21, 2000).
Data on protected status may not be recorded on any record that is kept in the applicant's preemployment file, nor may such data be kept in any other place or form where it is available to those who process the application. Application records that identify the protected status of a particular person must be kept confidential, except to the extent necessary to implement an affirmative action program as authorized by law, to permit the compilation of statistics, and to permit verification of the statistics by top management of the employer, or by the Washington state human rights commission (WAC 162-12-160, as amended effective January 21, 2000).
An employer may ask an applicant to voluntarily state his or her protected status for reasons stated in WAC 162-12-150 and 162-12-160 (above) only if it has satisfied all of the following conditions (WAC 162-12-170, as amended effective January 21, 2000):
The employer must have adopted a written equal employment policy that authorizes the inquiries as a means of monitoring its enforcement, and that sets out detailed procedures for keeping the responses confidential and separate from other records relating to applicants (WAC 162-12-170, as amended effective January 21, 2000).
The form on which the question appears contains statements clearly informing the applicant the information is strictly voluntary, the reasons for asking for the information, the uses to which the information will be put, and the safeguards that will prevent use of the information by those who will process the application.
Employers must comply with the preemployment inquiry rules (see above) except where one or more of the following conditions exist (WAC 162-12-140, as amended effective January 21, 2000):
when there is a bona fide occupational qualification;
a voluntary affirmative action plan that is in compliance with the requirements of a government agency or other competent authority such as a court, and if made in a manner provided in WAC 162-12-160 and 162-12-170 (see above);
a requirement of federal law or regulation, as explained in WAC 162-12-150 (see above).
If one or more of the above conditions apply, the inquiries of employers must be accompanied by a written explanation of their purpose (WAC 162-12-140, as amended effective January 21, 2000).
Background checks.-Schools.- If a volunteer alerts a school district that he or she has undergone a criminal records check in accordance with applicable state law within the two years before the time the volunteer is volunteering in the school, then the school may request that the volunteer furnish the school with a copy of the criminal history record information or sign a release to the business, school, organization, criminal justice agency, or juvenile justice or care agency, or other state agency that originally obtained the criminal history record information to permit the information to be shared with the school. Once the school requests the information from the business, school, organization, or agency, the information must be furnished to the school. Any business, school, organization, agency, or its employee or official that shares the criminal history record information with the requesting school in accordance with this section is immune from criminal and civil liability for dissemination of the information (Sec. 28A.320.155, as enacted by Ch. 21 (S. 5668), L. 1999).
If the criminal history record information is shared, the school must require the volunteer to sign a disclosure statement indicating that there has been no conviction since the completion date of the most recent criminal background inquiry (Sec. 28A.320.155, as enacted by Ch. 21 (S. 5668), L. 1999).
School districts, educational service districts, the state school for the deaf, the state school for the blind and their contractors hiring employees who will have regularly scheduled unsupervised access to children must require a record check through the Washington state patrol criminal identification system and through the FBI before hiring an employee. The record check must include a fingerprint check using a complete Washington state criminal identification fingerprint card. The requesting entity must provide a copy of the record report to the applicant. When necessary, applicants may be employed on a conditional basis pending completion of the investigation. If the applicant has had a record check within the previous two years, the district, the state school for the deaf, the state school for the blind, or contractor may waive the requirement. Except as provided in Sec. 28A.400.303(2) just below, the district, the state school for the deaf, the state school for the blind, or contractor hiring the employee must determine who will pay costs associated with the record check (Sec. 28A.400.303(1), as amended by S. 5382, L. 2007).
Federal Bureau of Indian Affairs-funded schools may use the process described just above to perform record checks for their employees and applicants for employment (Sec. 28A.400.303(2), as amended by S. 5382, L. 2007).
The school district board of directors must immediately terminate the employment of any classified employee who has contact with children during the course of his or her employment upon a guilty plea or conviction of any felony crime involving the physical neglect of a child, the physical injury or death of a child (except certain motor vehicle violations), sexual exploitation of a child, sexual offenses where a minor is the victim, promoting prostitution of a minor, the sale or purchase of a minor child, or violation of similar laws of another jurisdiction (Sec. 28A.400.320(1)).
The employee has a right of appeal (Sec. 28A.400.320(2)).
Before hiring an applicant for employment in a certificated or classified position who is currently or was previously employed by a school district, a school district shall request the applicant to sign a statement (Sec. 2, S. 5533, L. 2003):
authorizing the applicant's current and past employers to disclose to the hiring school district sexual misconduct, if any, by the applicant and making available to the hiring district copies of all documents in the previous employer's personnel, investigative, or other files relating to sexual misconduct by the applicant; and
releasing the applicant's current and past employers, and employees acting on behalf of that employer, from any liability for providing information described in item (1) just above, as provided below.
Before hiring an applicant, a school district shall request in writing, electronic or otherwise, the applicant's current and past employers to provide the information described in item (1) just above, if any. The request shall include a copy of the statement signed by the applicant as described just above (Sec. 2, S. 5533, L. 2003).
Not later than 20 business days after receiving a request for information as described just above, a school district shall provide the information requested and make available to the requesting school district copies of all documents in the applicant's personnel record relating to the sexual misconduct. The school district, or an employee acting on behalf of the school district, who in good faith discloses information under this section is immune from civil liability for the disclosure (Sec. 2, S. 5533, L. 2003).
A hiring district shall request from the office of the superintendent of public instruction verification of certification status, including information relating to sexual misconduct, if any, for applicants for certificated employment (Sec. 2, S. 5533, L. 2003).
A school district shall not hire an applicant who does not sign the statement described above (Sec. 2, S. 5533, L. 2003).
School districts may employ applicants on a conditional basis pending the district's review of information obtained under this section (Sec. 2, S. 5533, L. 2003).
Information received under this section shall be used by a school district only for the purpose of evaluating an applicant's qualifications for employment in the position for which he or she has applied. Except as otherwise provided by law, a board member or employee of a school district shall not disclose the information to any person, other than the applicant, who is not directly involved in the process of evaluating the applicant's qualifications for employment. A person who violates this subsection is guilty of a misdemeanor (Sec. 2, S. 5533, L. 2003).
Beginning September 1, 2004, the board or an official of a school district shall not enter into a collective bargaining agreement, individual employment contract, resignation agreement, severance agreement, or any other contract or agreement that has the effect of suppressing information about verbal or physical abuse or sexual misconduct by a present or former employee or of expunging information about that abuse or sexual misconduct from any documents in the previous employer's personnel, investigative, or other files relating to verbal or physical abuse or sexual misconduct by the applicant. Any provision of a contract or agreement that is contrary to this subsection is void and unenforceable, and may not be withheld from disclosure by the entry of any administrative or court order. This subsection does not restrict the expungement from a personnel file of information about alleged verbal or physical abuse or sexual misconduct that has not been substantiated (Sec. 2, S. 5533, L. 2003).
This section does not prevent a school district from requesting or requiring an applicant to provide information other than that described in this section (Sec. 2, S. 5533, L. 2003).
Except as limited by Ch. 49.12 (see ¶49-8500 ), at the conclusion of a school district's investigation, a school employee has the right to review his or her entire personnel file, investigative file, or other file maintained by the school district relating to sexual misconduct as addressed in this section and to attach rebuttals to any documents as the employee deems necessary. Rebuttal documents shall be disclosed in the same manner as the documents to which they are attached. The provisions of this subsection do not supersede the protections provided individuals under the state whistleblower laws in Ch. 42.41 (see ¶49-3600 ).
Public employment.- Subject to the exceptions in Sec. 9.96A.020(3) and (4) below, and unless there is another provision of law to the contrary, a person is not disqualified from employment by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, nor is a person disqualified to practice, pursue or engage in any occupation, trade, vocation, or business for which a license, permit, certificate or registration is required to be issued by the state of Washington or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations solely because of a prior conviction of a felony. However, this section does not preclude the fact of any prior conviction of a crime from being considered (Sec. 9.96A.020(1)).
A person may be denied employment by the state or any of its counties, cities, towns, municipal corporations, or quasi-municipal corporations, or a person may be denied a license, permit, certificate or registration to pursue, practice or engage in an occupation, trade, vocation, or business by reason of the prior conviction of a felony if the felony for which he or she was convicted directly relates to the position of employment sought or to the specific occupation, trade, vocation, or business for which the license, permit, certificate or registration is sought, and the time elapsed since the conviction is less than 10 years. However, for positions in the county treasurer's office, a person may be disqualified from employment because of a prior guilty plea or conviction of a felony involving embezzlement or theft, even if the time elapsed since the guilty plea or conviction is 10 years or more (Sec. 9.96A.020(2)).
A person is disqualified for any certificate required or authorized under Chs. 28A.405 or 28A.410, because of a prior guilty plea or the conviction of a felony involving sexual exploitation of a child under Ch. 9.68A, sexual offenses under Ch. 9A.44 where a minor is the victim, promoting prostitution of a minor under Ch. 9A.88, or a violation of similar laws of another jurisdiction, even if the time elapsed since the guilty plea or conviction is 10 years or more (Sec. 9.96A.020(3)).
A person is disqualified from employment by school districts, educational service districts, and their contractors hiring employees who will have regularly scheduled unsupervised access to children, because of a prior guilty plea or conviction of a felony involving sexual exploitation of a child under Ch. 9.68A, sexual offenses under Ch. 9A.44 where a minor is the victim, promoting prostitution of a minor under Ch. 9A.88, or a violation of similar laws of another jurisdiction, even if the time elapsed since the guilty plea or conviction is 10 years or more (Sec. 9.96A.020(4), as amended by Ch. 16 (S. 5202), L. 1999).
Department of Social and Health Services employees.- Background checks of conviction records, pending charges and disciplinary board final decisions will be conducted on current department employees or applicants seeking or being considered for any position with the department with unsupervised access to children, vulnerable adults, or individuals with mental illness or developmental disabilities.
Background checks will also be conducted for individual providers of in-home services and other providers of care involving the people with disabilities, mental illness or vulnerable adults.
The investigation may include an examination of state and national criminal identification data. Information obtained will be used solely for the purpose of determining the character, suitability and competence of these applicants.
With respect to the provision of in-home services funded by medicaid personal care, community options program entry system waiver services or chore services, individual providers or home care agency providers who have resided in the Washington less than three years before applying for employment involving unsupervised access to a vulnerable adult must be fingerprinted for the purpose of investigating conviction records both through the Washington state patrol and the federal bureau of investigation. These providers must have no conviction for a disqualifying crime under the public assistance law or no conviction for a crime relating to drugs.
Results of the background checks on individual providers will be provided to the persons hiring them or to their legal guardians, if any, for their determination of the character, suitability and competence of the applicants. If the person elects to hire or retain an individual provider after receiving notice from the department that the applicant has a conviction for an offense that would disqualify the applicant from having unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults, then payment for any subsequent services rendered by the disqualified individual provider will be denied (Sec. 43.20A.710, as amended by S. 5606, L. 2001, effective July 22, 2001).
The provisions do not address the action that will be taken if a background check result disqualifies an employee from his or her current position. The personnel resources board will develop a policy recommendation by December 1, 2001 (Sec. 7, S. 5606, L. 2001, effective July 22, 2001).
Restoration of employment rights are not available to Department of Social and Health Services employees, who in the course of employment, have or may have unsupervised access to any person who is under the age of 18, who is under the age of 21 and has been sentenced to a term of confinement under the supervision of the department, who is a vulnerable adult or vulnerable person-an adult of any age who lacks the functional, mental or physical ability to care for himself or herself (Sec. 2, S. 5606, L. 2001, effective July 22, 2001).
Furnishing of conviction records to employers by state patrol.- The Washington state patrol must furnish a conviction record pertaining to any person of whom it has a record upon the written or electronic request of any employer for the purpose of (Sec. 43.43.815(1)):
Securing a bond required for any employment;
Conducting preemployment and postemployment evaluations of employees and prospective employees who, in the course of employment, may have access to information affecting national security, trade secrets, confidential or proprietary business information, money, or items of value; or
Assisting an investigation of suspected employee misconduct where such misconduct may also constitute a penal offense under federal or state law.
When an employer has received a conviction record under Sec. 43.43.815(1) above, the employer must notify the subject of the record of such receipt within 30 days after receipt of the record, or upon completion of an investigation under item (3) just above. The employer must make the record available for examination by its subject and must notify the subject of such availability (Sec. 43.43.815(2)).
The Washington state patrol may charge fees for disseminating records (Sec. 43.43.815(3)).
Information disseminated pursuant to this section or Sec. 43.43.760 must be available only to persons involved in the hiring, background investigation, or job assignment of the person whose record is disseminated and must be used only as necessary for those purposes enumerated in Sec. 43.43.815(1) above (Sec. 43.43.815(4)).
Any person may maintain an action to enjoin a continuance of any act or acts in violation of this section, and if injured thereby, for the recovery of damages and for the recovery of reasonable attorneys' fees. If, in such action, the court finds that the defendant is violating or has violated this section, it must enjoin the defendant from a continuance thereof, and it must not be necessary that actual damages to the plaintiff be alleged or proved. In addition to such injunctive relief, the plaintiff in the action is entitled to recover from the defendant the amount of the actual damages, if any, sustained by him or her if actual damages to the plaintiff are alleged and proved. In any suit brought to enjoin a violation of this chapter, the prevailing party may be awarded reasonable attorneys' fees. Commencement, pendency, or conclusion of a civil action for injunction or damages will not affect the liability of a person or agency to criminal prosecution for a violation of Ch. 10.97 (Sec. 43.43.815(5)).
Neither the section, its employees, nor any other agency or employee of the state is liable for defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of information pursuant to this section or Sec. 43.43.760 (Sec. 43.43.815(6)).
The following definitions apply throughout Secs. 43.43.830-43.43.840 (Sec. 43.43.830).
“Applicant” means (Sec. 43.43.830):
Any prospective employee who will or may have unsupervised access to children under 16 years of age or developmentally disabled persons or vulnerable adults during the course of his or her employment or involvement with the business or organization;
Any prospective volunteer who will have regularly scheduled unsupervised access to children under 16 years of age, developmentally disabled persons, or vulnerable adults during the course of his or her employment or involvement with the business or organization under circumstances where such access will or may involve groups of (i) five or fewer children under 12 years of age, (ii) three or fewer children between 12 and 16 years of age, (iii) developmentally disabled persons, or (iv) vulnerable adults.
“Business or organization” means a business or organization licensed in Washington, any agency of the state, or other governmental entity, that educates, trains, treats, supervises, houses, or provides recreation to developmentally disabled persons, vulnerable adults, or children under 16 years of age (Sec. 43.43.830).
“Crime against children or other persons” means a conviction of any of the following offenses: Aggravated murder; first or second degree murder; first or second degree kidnaping; first, second, or third degree assault; first, second, or third degree assault of a child; first, second, or third degree rape; first, second, or third degree rape of a child; first or second degree robbery; first degree arson; first degree burglary; first or second degree manslaughter; first or second degree extortion; indecent liberties; incest; vehicular homicide; first degree promoting prostitution; communication with a minor; unlawful imprisonment; simple assault; sexual exploitation of minors; first or second degree criminal mistreatment; child abuse or neglect as defined in Sec. 26.44.020; first or second degree custodial interference; malicious harassment; first, second, or third degree child molestation; first or second degree sexual misconduct with a minor; patronizing a juvenile prostitute; child abandonment; promoting pornography; selling or distributing erotic material to a minor; custodial assault; violation of child abuse restraining order; child buying or selling; prostitution; felony indecent exposure; or criminal abandonment (Sec. 43.43.830).
The Washington state patrol identification and criminal history section must disclose, upon the request of a business or organization licensed in Washington, any agency of the state, or other governmental entity, that educates, trains, treats, supervises, houses, or provides recreation to developmentally disabled persons, vulnerable adults, or children under 16 years of age; a developmentally disabled person; or a vulnerable adult or his or her guardian; an applicant's record for convictions as defined in Ch. 10.97 (Sec. 43.43.832(1), as amended by Ch. 421 (S. 5899), L. 2005).
The state board of education may request of the Washington state patrol criminal identification system information regarding a certificate applicant's record for convictions under Sec. 43.43.832(1) above (Sec. 43.43.832(2), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
Law enforcement agencies, the office of the attorney general, prosecuting authorities, and the department of social and health services may request this same information to aid in the investigation and prosecution of child, developmentally disabled person, and vulnerable adult abuse cases and to protect children and adults from further incidents of abuse (Sec. 43.43.832(3), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
The secretary of the department of social and health services must establish rules and set standards to require specific action when considering the information listed in Sec. 43.43.832(1) above, and when considering additional information including but not limited to civil adjudication proceedings as defined in Sec. 43.43.830 and any out-of-state equivalent, in the following circumstances (Sec. 43.43.832(4), as amended by Ch. 421 (S. 5899), L. 2005):
When considering persons for state employment in positions directly responsible for the supervision, care, or treatment of children, vulnerable adults, or individuals with mental illness or developmental disabilities;
When considering persons for state positions involving unsupervised access to vulnerable adults to conduct comprehensive assessments, financial eligibility determinations, licensing and certification activities, investigations, surveys, or case management; or for state positions otherwise required by federal law to meet employment standards;
When licensing agencies or facilities with individuals in positions directly responsible for the care, supervision, or treatment of children, developmentally disabled persons, or vulnerable adults;
When contracting with individuals or businesses or organizations for the care, supervision, case management or treatment of children, developmentally disabled persons, or vulnerable adults;
When individual providers are paid by the state or providers are paid by home care agencies to provide in-home services involving unsupervised access to persons with physical, mental, or developmental disabilities or mental illness, or to vulnerable adults.
Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis pending completion of the state background investigation. Whenever a national criminal record check through the FBI is required by state law, a person may be employed or engaged as a volunteer or independent contractor on a conditional basis pending completion of the national check (Sec. 43.43.832(5), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
For purposes of facilitating timely access to criminal background information and to reasonably minimize the number of requests made under this section, recognizing that certain health care providers change employment frequently, health care facilities may, upon request from another health care facility, share copies of completed criminal background inquiry information (Sec. 43.43.832(6)(a), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
Completed criminal background inquiry information may be shared by a willing health care facility only if the following conditions are satisfied: The licensed facility sharing the information is reasonably known to be the person's most recent employer, no more than 12 months have elapsed from the date the person was last employed at a licensed health care facility to the date of their current employment application, and the criminal background information is no more than two years old (Sec. 43.43.832(6)(b), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
If criminal background inquiry information is shared, the health care facility employing the subject of the inquiry must require the applicant to sign a disclosure statement indicating that there has been no conviction or finding as described in Sec. 43.43.842 since the completion date of the most recent criminal background inquiry (Sec. 43.43.832(6)(c), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
Any health care facility that knows or has reason to believe that an applicant has or may have a disqualifying conviction or finding subsequent to the completion date of their most recent criminal background inquiry may not rely on the applicant's previous employer's criminal background inquiry information. A new criminal background inquiry must be requested (Sec. 43.43.832(6)(d), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
Health care facilities that share criminal background inquiry information are immune from any claim of defamation, invasion of privacy, negligence, or any other claim in connection with any dissemination of this information in accordance with this subsection (Sec. 43.43.832(6)(e), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
Health care facilities must transmit and receive the criminal background inquiry information in a manner that reasonably protects the subject's rights to privacy and confidentiality (Sec. 43.43.832(6)(f), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
For the purposes of this subsection, “health care facility” means a nursing home licensed under Ch. 18.51, a boarding home licensed under Ch. 18.20, or an adult family home licensed under Ch. 70.128 (Sec. 43.43.832(6)(g), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
If an FBI check is required in addition to the state background check by the department of social and health services, an applicant who is not disqualified based on the results of the state check will be eligible for a 120-day provisional approval to hire, pending the outcome of the FBI check. The department may extend the provisional approval until receipt of the FBI check. If the FBI check disqualifies an applicant, the department must notify the requestor that the provisional approval to hire is withdrawn and the applicant may be terminated (Sec. 43.43.832(7), as amended by Ch. 87 (H. 2637), L. 1999, effective June 8, 2000).
If information is released under this chapter by the state of Washington, the state and its employees: (1) make no representation that the subject of the inquiry has no criminal record or adverse civil or administrative decisions; (2) make no determination that the subject of the inquiry is suitable for involvement with a business or organization; and (3) are not liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information (Sec. 43.43.833).
A business or organization must not make an inquiry to the Washington state patrol under Sec. 43.43.832 above or an equivalent inquiry to a federal law enforcement agency unless the business or organization has notified the applicant who may be offered a position as an employee or volunteer, that an inquiry may be made (Sec. 43.43.834(1), as amended by Ch. 421 (S. 5899), L. 2005).
A business or organization must require each applicant to disclose to the business or organization whether the applicant (Sec. 43.43.834(2), as amended by Ch. 421 (S. 5899), L. 2005):
Has been convicted of a crime;
Has had findings made against him or her in any civil adjudicative proceeding as defined in Sec. 43.43.830; or
Has both a conviction under item (1) just above and findings made against him or her under item (2) just above.
The business or organization must pay such reasonable fee for the records check as the state patrol may require (Sec. 43.43.834(3), as amended by Ch. 21 (S. 5668), L. 1999).
The business or organization must notify the applicant of the state patrol's response within 10 days after receipt by the business or organization. The employer must provide a copy of the response to the applicant and must notify the applicant of such availability (Sec. 43.43.834(4), as amended by Ch. 21 (S. 5668), L. 1999).
The business or organization must use this record only in making the initial employment or engagement decision. Further dissemination or use of the record is generally prohibited. A business or organization violating this subsection is subject to a civil action for damages (Sec. 43.43.834(5), as amended by Ch. 21 (S. 5668), L. 1999).
An insurance company must not require a business or organization to request background information on any employee before issuing a policy of insurance (Sec. 43.43.834(6), as amended by Ch. 21 (S. 5668), L. 1999).
The business and organization are immune from civil liability for failure to request background information on an applicant unless the failure to do so constitutes gross negligence (Sec. 43.43.834(7), as amended by Ch. 21 (S. 5668), L. 1999).
An individual may contact the state patrol to ascertain whether an individual has a conviction record. The state patrol must disclose such information, subject to a statutory fee (Sec. 43.43.836, as amended by Ch. 421 (S. 5899), L. 2005).
The state patrol must furnish a transcript of the conviction record pertaining to any person for whom the state patrol or the FBI has a record upon the written request of (Sec. 43.43.838(1), as amended by Ch. 421 (S. 5899), L. 2005):
The subject of the inquiry;
Any business or organization for the purpose of conducting evaluations under Sec. 43.43.832;
The department of social and health services;
Any law enforcement agency, prosecuting authority, or the office of the attorney general; or
The department of social and health services for the purpose of meeting responsibilities set forth in Chs. 74.15, 18.51, 18.20, or 72.23, or any later-enacted statute which purpose is to regulate or license a facility that handles vulnerable adults. However, access to conviction records pursuant to this item (5) does not limit or restrict the ability of the department to obtain additional information regarding conviction records and pending charges as set forth in Sec. 74.15.030(2)(b).
Record checks requested by school districts and educational service districts using only name and date of birth are provided free of charge (Sec. 43.43.838(2)).
No employee of the state, employee of a business or organization, or the business or organization is liable for defamation, invasion of privacy, negligence, or any other claim in connection with any lawful dissemination of information under Secs. 43.43.830-43.43.840 or 43.43.760 (Sec. 43.43.838(3)).
When a business or an organization terminates, fires, dismisses, fails to renew the contract, or permits the resignation of an employee because of crimes against children or other persons or because of crimes relating to the financial exploitation of a vulnerable adult, and if that employee is employed in a position requiring a certificate or license issued by a licensing agency, the business or organization must notify the licensing agency of such termination of employment (Sec. 43.43.840, as amended by Ch. 421 (S. 5899), L. 2005).
The secretary of social and health services and the secretary of health will adopt additional requirements for the licensure or relicensure of agencies, facilities, and licensed individuals who provide care and treatment to vulnerable adults. These additional requirements must ensure that any person associated with a licensed agency or facility having unsupervised access with a vulnerable adult must not have been (Sec. 43.43.842(1)(a)):
convicted of a crime against persons as defined in Sec. 43.43.830 above, except as provided in this section;
convicted of crimes relating to financial exploitation, except as provided in this section;
found in any disciplinary board final decision to have abused a vulnerable adult under Sec. 43.43.830; or
the subject in a protective proceeding under Ch. 74.34.
A person associated with a licensed agency or facility who has unsupervised access with a vulnerable adult must make the disclosures specified in Sec. 43.43.834(2) above. The person must make the disclosures in writing, sign, and swear to the contents under penalty of perjury. The person must, in the disclosures, specify all crimes against children or other persons, all crimes relating to financial exploitation, and all crimes relating to drugs, committed by the person (Sec. 43.43.842(1)(b)).
The rules adopted under this section must permit the licensee to consider the criminal history of an applicant for employment in a licensed facility when the applicant has one or more convictions for a past offense and (Sec. 43.43.842(2)):
The offense was simple assault, assault in the fourth degree, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;
The offense was prostitution, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;
The offense was theft in the third degree, or the same offense as it may be renamed, and three or more years have passed between the most recent conviction and the date of application for employment;
The offense was theft in the second degree, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment;
The offense was forgery, or the same offense as it may be renamed, and five or more years have passed between the most recent conviction and the date of application for employment.
The offenses set forth in items (a)-(e) just above do not automatically disqualify an applicant from employment by a licensee (Sec. 43.43.842(2)).
In consultation with law enforcement personnel, the secretary of social and health services and the secretary of health must investigate, or cause to be investigated, the conviction record and the protection proceeding record information under this chapter of the staff of each agency or facility under their respective jurisdictions seeking licensure or relicensure. An individual responding to a criminal background inquiry request from his or her employer or potential employer must disclose the information about his or her criminal history under penalty of perjury. The secretaries must use the information solely for the purpose of determining eligibility for licensure or relicensure. Criminal justice agencies must provide the secretaries such information as they may have and that the secretaries may require for such purpose (Sec. 43.43.842(3)).
Upon a guilty plea or conviction of a person of any felony crime involving the physical neglect of a child, the physical injury or death of a child (except certain motor vehicle violations), sexual exploitation of a child, sexual offenses under Ch. 9A.44 where a minor is the victim, promoting prostitution of a minor, or the sale or purchase of a minor child, the prosecuting attorney shall notify the state patrol of such guilty pleas or convictions (Sec. 43.43.845(1), as amended by Ch. 421 (S. 5899), L. 2005).
When the state patrol receives information that a person has pled guilty to or been convicted of one of the felony crimes under Sec. 43.43.845(1) above, the state patrol shall transmit that information to the superintendent of public instruction. It is the duty of the superintendent of public instruction to identify whether the person holds a certificate or permit issued under Chs. 28A.405 and 28A.410 or is employed by a school district, and provide this information to the state board of education and the school district employing the individual who pled guilty or was convicted of the crimes identified in Sec. 43.43.845(1) (Sec. 43.43.845(2), as amended by Ch. 421 (S. 5899), L. 2005).
Metropolitan park districts.- For all employees, volunteers, or independent contractors, who may, in the course of their work or volunteer activity with a metropolitan park district, have unsupervised access to children or vulnerable adults, or be responsible for collecting or disbursing cash or processing credit/debit card transactions, park districts shall establish by resolution the requirements for a record check through the Washington state patrol criminal identification system under Secs. 43.43.830 through 43.43.834, 10.97.030, and 10.97.050, and through the FBI, including a fingerprint check using a complete Washington state criminal identification fingerprint card. The park district shall provide a copy of the record report to the employee, volunteer, or independent contractor. When necessary, as determined by the park district, prospective employees, volunteers, or independent contractors may be employed on a conditional basis pending completion of the investigation. If the prospective employee, volunteer, or independent contractor has had a record check within the previous 12 months, the park district may waive the requirement upon receiving a copy of the record. The park district may in its discretion require that the prospective employee, volunteer, or independent contractor pay the costs associated with the record check (Sec. 35.61.130, as amended by H. 2991, L. 2005, enacted March 24, 2006).
Emergency vehicle drivers.- The state patrol may make rules and regulations relating to authorized emergency vehicles. The equipment and standards review unit shall require a record check of all applicants and drivers for an authorized emergency vehicle permit through the Washington state patrol criminal identification section pursuant to RCW 10.97.050 and through the FBI before issuing an authorized emergency vehicle permit. The record check shall include a fingerprint check using a complete Washington state criminal identification fingerprint card. When necessary, applicants and drivers may be employed on a conditional basis pending completion of the investigation. Pursuant to RCW 43.43.742, the applicant, driver, or employer shall pay costs associated with the record check (Sec. 46.37.194, as amended by Ch. 27 (H. 1305), L. 2005, enacted March 14, 2006).
Driving record abstracts for employment purposes.- A certified abstract of the driving record shall be furnished only to: (a) The individual named in the abstract; (b) An employer or prospective employer or an agent acting on behalf of an employer or prospective employer, or a volunteer organization for which the named individual has submitted an application for a position that could require the transportation of children under 18 years of age, adults over 65 years of age, or persons with mental or physical disabilities; (c) An employee or agent of a transit authority checking prospective volunteer vanpool drivers for insurance and risk management needs; (d) The insurance carrier that has insurance in effect covering the employer or a prospective employer; (e) The insurance carrier that has motor vehicle or life insurance in effect covering the named individual; (f) The insurance carrier to which the named individual has applied; (g) An alcohol/drug assessment or treatment agency approved by the department of social and health services, to which the named individual has applied or been assigned for evaluation or treatment; (h) City and county prosecuting attorneys; (i) State colleges, universities, or agencies for employment and risk management purposes; or units of local government authorized to self-insure under RCW 48.62.031; or (j) An employer or prospective employer or volunteer organization, or an agent acting on behalf of an employer or prospective employer or volunteer organization, for employment purposes related to driving by an individual as a condition of that individual's employment or otherwise at the direction of the employer or organization (Sec. 46.52.130(1), as amended by S. 5610, L. 2009).
Upon proper request, a certified abstract of the full driving record maintained by the department shall be furnished to a city or county prosecuting attorney, to the individual named in the abstract, to an employer or prospective employer or an agent acting on behalf of an employer or prospective employer of the named individual, or to a volunteer organization for which the named individual has submitted an application for a position that could require the transportation of children under 18 years of age, adults over 65 years of age, or persons with physical or mental disabilities, or to an employee or agent of a transit authority checking prospective volunteer vanpool drivers for insurance and risk management needs (Sec. 46.52.130(6), as amended by S. 5610, L. 2009).
Any employer or prospective employer or an agent acting on behalf of an employer or prospective employer, or a volunteer organization for which the named individual has submitted an application for a position that could require the transportation of children under 18 years of age, adults over 65 years of age, or persons with physical or mental disabilities, receiving the certified abstract shall use it exclusively for its own purpose (1) to determine whether the licensee should be permitted to operate a commercial vehicle or school bus, or operate a vehicle for a volunteer organization for purposes of transporting children under 18 years of age, adults over 65 years of age, or persons with physical or mental disabilities, upon the public highways of this state; or (2) for employment purposes related to driving by an individual as a condition of that individual's employment or otherwise at the direction of the employer or organization, and shall not divulge any information contained in it to a third party (Sec. 46.52.130(12), as amended by S. 5610, L. 2009).
Release of a certified abstract of the driving record of an employee, prospective employee, or prospective volunteer requires a statement signed by: (a) The employee, prospective employee, or prospective volunteer that authorizes the release of the record, and (b) the employer or volunteer organization attesting that the information is necessary (i) to determine whether the licensee should be employed to operate a commercial vehicle or school bus, or operate a vehicle for a volunteer organization for purposes of transporting children under 18 years of age, adults over 65 years of age, or persons with physical or mental disabilities, upon the public highways of this state; or (ii) for employment purposes related to driving by an individual as a condition of that individual's employment or otherwise at the direction of the employer or organization. If the employer or prospective employer authorizes an agent to obtain this information on their behalf, this must be noted in the statement (Sec. 46.52.130(15), as amended by S. 5610, L. 2009).
Consumer reports.- A consumer reporting agency may furnish a consumer report to a person that the agency has reason to believe intends to use the information for employment purposes (Sec. 19.182.020(1), as amended by Ch. 93 (S. 5827), L. 2007, effective July 22, 2007).
Subject to Sec. 19.182.020(2)(c) below, a person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any consumer who is not an employee at the time the report is procured or caused to be procured unless (Sec. 19.182.020(2)(a), as amended by Ch. 93 (S. 5827), L. 2007, effective July 22, 2007):
A clear and conspicuous disclosure has been made in writing to the consumer before the report is procured or caused to be procured that a consumer report may be obtained for purposes of considering the consumer for employment. The disclosure may be contained in a written statement contained in employment application materials; or
The consumer authorizes the procurement of the report.
A person may not procure a consumer report, or cause a consumer report to be procured, for employment purposes with respect to any employee unless the employee has received, at any time after the person became an employee, written notice that consumer reports may be used for employment purposes. A written statement that consumer reports may be used for employment purposes that is contained in employee guidelines or manuals available to employees or included in written materials provided to employees constitutes written notice for purposes of this subsection. This subsection does not apply with respect to a consumer report of an employee who the employer has reasonable cause to believe has engaged in specific activity that constitutes a violation of law (Sec. 19.182.020(2)(b), as amended by Ch. 93 (S. 5827), L. 2007, effective July 22, 2007).
As applied to Sec. 19.182.020(a) and (b) just above, a person may not procure a consumer report for employment purposes where any information contained in the report bears on the consumer's credit worthiness, credit standing, or credit capacity, unless the information is either (Sec. 19.182.020(2)(c), as amended by Ch. 93 (S. 5827), L. 2007, effective July 22, 2007):
Substantially job related and the employer's reasons for the use of such information are disclosed to the consumer in writing; or
Required by law.
In using a consumer report for employment purposes, before taking any adverse action based in whole or part on the report, a person shall provide to the consumer to whom the report relates: (i) The name, address, and telephone number of the consumer reporting agency providing the report; (ii) a description of the consumer's rights under this chapter pertaining to consumer reports obtained for employment purposes; and (iii) a reasonable opportunity to respond to any information in the report that is disputed by the consumer. This subsection applies to job applicants and current employees (Sec. 19.182.020(2)(d), as amended by Ch. 93 (S. 5827), L. 2007, effective July 22, 2007).
Job reference liability.- An employer who discloses information about a former or current employee to a prospective employer or employment agency, at the specific request of that individual employer or employment agency, is presumed to be acting in good faith and is immune from civil and criminal liability for such disclosure or its consequences if the disclosed information relates to: (1) the employee's ability to perform his or her job; (2) the diligence, skill, or reliability with which the employee carried out the duties of his or her job; or (3) any illegal or wrongful act committed by the employee when related to the duties of his or her job (Ch. 103 (H. 1625), L. 2005, effective July 24, 2005).
The employer should retain a written record of the identity of the person or entity to which information is disclosed under this section for a minimum of two years from the date of disclosure. The employee or former employee has a right to inspect any such written record upon request and any such written record shall become part of the employee's personnel file (Ch. 103 (H. 1625), L. 2005, effective July 24, 2005).
For the purposes of this section, the presumption of good faith may only be rebutted upon a showing by clear and convincing evidence that the information disclosed by the employer was knowingly false, deliberately misleading, or made with reckless disregard for the truth (Ch. 103 (H. 1625), L. 2005, effective July 24, 2005).
Service letters.- Every employer must, upon written request by an employee, furnish within 10 working days of the request to each employee who is discharged a signed written statement setting forth the reasons for such discharge and the effective date of the discharge (WAC 296-126-050).
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