Understanding the Washington Fair Chance Act 2026 and the Key Changes for Employers

The Washington Fair Chance Act 2026 marks a significant evolution in employment law, aimed at reinforcing equity and opportunity for individuals with criminal histories. Building on the foundational principles established in previous legislation, this updated Act introduces a series of key changes that impact how employers approach hiring practices. The primary goal of the Fair Chance Act is to reduce barriers to employment for job seekers who may have faced systemic disadvantages due to past convictions.

With an increasingly competitive labor market, employers are encouraged to adopt more inclusive hiring strategies that not only comply with legal requirements but also promote diversity and social responsibility. The 2026 revisions expand the scope of protections, altering the timing and manner in which employers can inquire about an applicant's criminal history, thereby fostering a more equitable recruiting environment. This article delves into the critical components of the Washington Fair Chance Act 2026, elucidating the key changes that employers must be aware of to ensure compliance and embrace the benefits of a diverse workforce. By understanding these updates, employers can better navigate the complexities of the hiring process while contributing to a more inclusive economy.

Washington State is set to enhance its Fair Chance Act (FCA), establishing it as one of the most extensive ban-the-box regulations in the United States. Originally implemented in 2018, the FCA prohibited employers from inquiring about an applicant's criminal history until after they had determined that the applicant met the qualifications for the position. Starting July 1, 2026, organizations with 15 or more employees will be required to follow new compliance protocols when considering criminal background information during the hiring process, while those with fewer than 15 employees must adhere to these regulations by January 1, 2027.

Notable Amendments to the Fair Chance Act

Revised Timing for Criminal Background Checks

According to the updated legislation, employers are now required to conduct criminal background checks only after a conditional job offer has been made, regardless of whether the applicant has already been deemed qualified.
By postponing background checks until after the offer stage, this law seeks to reduce the potential for unconscious bias and prevent premature disqualification during the hiring process. It aligns with a broader national movement towards ban-the-box measures, which aim to provide individuals with criminal records a fair chance at merit-based employment. Such measures are increasingly being adopted across various states, including California, Illinois, and New York.
Recommended Actions for Employers:
- Reassess recruitment processes to ensure that inquiries into criminal history occur only after a conditional offer has been made.
- Avoid timing violations to mitigate the risk of legal repercussions.

Limitations on Utilizing Criminal Records

Employers are prohibited from taking adverse employment actions solely based on arrest records (including pending charges) or juvenile conviction records.

These limitations reflect a legislative intent to differentiate between allegations and proven conduct. Arrest records without subsequent convictions do not reliably indicate criminal behavior and can disproportionately impact marginalized communities. By excluding juvenile records and non-conviction data from employment considerations, the legislation promotes a more equitable hiring process focused on verified, pertinent criminal history rather than assumptions or incomplete information.
Recommended Actions for Employers:
- Consider adult arrest records only when the individual is out on bail or released on personal recognizance while awaiting trial.
- Adjust screening criteria accordingly and ensure that background check providers adhere to these limitations.

Prohibition of Automatic Exclusion Policies

The revised Fair Chance Act mandates that employers cannot implement policies that automatically disqualify candidates purely based on their criminal history. Such blanket exclusions are now expressly forbidden, regardless of the offense's nature or timing. Employers must evaluate each applicant’s criminal history in relation to the specific job, considering whether the offense is relevant to the role's responsibilities and whether it poses a legitimate risk to the business, its clientele, or the public. This shift underscores the importance of considering context and fairness, allowing individuals to be evaluated based on their qualifications and recent conduct rather than being disqualified for past mistakes.

Recommended Actions for Employers:
- Review and amend any existing hiring practices or policies that include automatic exclusions, particularly those integrated into job descriptions, applications, or background screening criteria.

Requirement for a Legitimate Business Reason

Employers may only reject an applicant or take action against an employee based on a conviction if they can demonstrate a "legitimate business reason." This is characterized by a good-faith belief that the criminal conduct:
- Impairs the individual’s ability to perform the job effectively; or
- Poses a risk to people, property, business reputation, or assets.

This stipulation compels employers to make well-documented, defensible hiring decisions based on the specific demands and risks associated with the position. Generalized concerns or assumptions about an applicant’s criminal history will no longer suffice. This standard ensures fairness in hiring choices and enhances transparency in employment practices.

Recommended Actions for Employers:
- Link the conviction to a clear and demonstrable risk relevant to the position.

Individualized Assessment Requirements

To substantiate a legitimate business reason, employers must conduct and document an individualized assessment that includes evaluating:
- The severity of the offense.
- The number and nature of convictions.
- The elapsed time since the conviction (excluding any incarceration).
- Evidence of rehabilitation, training, or relevant work experience.
- Job-specific duties and work environment considerations.

This documentation is vital in case a decision is contested, emphasizing the necessity for a meticulous, case-by-case approach. A consistent assessment process guarantees fairness and affirms that employment decisions are based on objective, job-related criteria.
Recommended Actions for Employers:
- Train hiring managers to accurately conduct and document these assessments to minimize liability and ensure compliance.

Expanded Adverse Action Notifications

In line with the federal Fair Credit Reporting Act (FCRA), the updated FCA introduces a two-step notification process concerning adverse employment actions:

Initial Notification: Employers must identify the criminal record under consideration and hold the position open for a minimum of two business days, extending to five business days if aligned with FCRA procedures. This allows candidates a meaningful opportunity to address their record or provide details about their rehabilitation, conduct, work experience, education, and training before a final decision is made.

Final Notification: This must clearly communicate the employer’s decision, including documented reasoning, an evaluation of relevant factors (such as how the conviction impacts the role), and a summary of any information provided by the applicant in response to the initial notification

Recommended Actions for Employers:
- Ensure that procedures for adverse actions comply with both FCRA and FCA to avoid legal challenges.

New Disclosure Requirement During Hiring

Employers are now mandated to provide written disclosure when informing candidates about post-offer background checks. This disclosure must include:
- A summary of the FCA's provisions.
- A copy of the Washington Attorney General's FCA guide

This requirement also applies if an applicant voluntarily discusses their criminal history during the interview. This measure enhances transparency, ensuring candidates are aware of their legal rights before background checks are conducted. Employers should integrate this disclosure into their hiring communications and train staff accordingly to prevent compliance issues.

Consequences for Noncompliance

Organizations that fail to adhere to these new regulations may incur civil penalties and compensatory damages awarded to affected individuals. The state is committed to enforcement, making adherence to legal and procedural requirements a priority for HR and legal teams.

Beyond financial ramifications, noncompliance may harm an organization's reputation and lead to costly legal disputes. Employers are encouraged to proactively audit their hiring practices, update relevant policies, and ensure that all personnel involved in hiring are trained on these new requirements. A proactive stance will help mitigate risks and facilitate a smoother transition as the effective dates approach.

Conclusion

The Washington Fair Chance Act 2026 reflects a continued shift toward fairer, more equitable hiring practices that give qualified individuals with criminal histories a genuine opportunity to rebuild their lives through meaningful employment. As the law expands protections and heightens employer responsibilities, organizations must be diligent in updating their hiring processes, documentation, and training to stay compliant. By embracing the updated requirements — from individualized assessments and timely disclosures to well-documented legitimate business reasons — employers can minimize legal risks while demonstrating their commitment to equity, transparency, and second chances. Ultimately, thoughtful compliance with the Washington FCA not only protects businesses from costly penalties but also strengthens communities by opening doors to a broader, more diverse talent pool.

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