Navigating Washington’s Strengthened Fair Chance Act: Compliance Obligations for Employers in 2026 and Beyond

For nearly a decade, Washington State’s approach to criminal history in hiring has been shaped by the Fair Chance Act, originally passed in 2018.  That law established a foundational rule: employers could not ask about an applicant’s criminal background until the applicant had been deemed otherwise qualified for the role.  In 2025, Governor Bob Ferguson signed House Bill 1747, amending the Fair Chance Act in ways that substantially raise the bar for employer compliance.  The amended law became operative on July 1, 2026, for employers with 15 or more employees, and will extend to employers with fewer than 15 employees beginning January 1, 2027.

Exempt Employers

Before taking action, employers should first determine whether an exemption applies.  The law does not apply to:

• Employers hiring individuals who will have unsupervised access to children, vulnerable adults, or vulnerable persons as defined by law;
• Washington law enforcement and criminal justice agencies;
• Financial institutions, national or registered securities entities, and other employers permitted or required by law to inquire about and consider an applicant's criminal record for employment purposes; and
• Employers seeking non-employee volunteers.

In these cases, employers retain the right to ask about criminal history and use it during the decision-making process.

New Compliance Requirements

The centerpiece of the amended law is a stricter and more clearly defined timing rule.  An employer may not request, receive or consider criminal history information of any kind—nor may an employer initiate a background check—until a conditional offer of employment has first been extended to the applicant.  Juvenile adjudication records and non-conviction data generally may not be considered even after a conditional offer of employment and arrest records may only be weighed in narrow circumstances—such as when a person is currently released on bail or personal recognizance while a charge remains pending.

Additionally, the use of automatic or categorical disqualification policies is prohibited.  An employer may not reject an applicant solely on the basis that a criminal record exists, regardless of the offense type or how long ago it occurred.  In place of blanket exclusions, employers are now required to conduct a documented individualized assessment whenever criminal history is a factor in an employment decision.  That assessment must weigh six specific statutory factors:

• the nature and gravity of the offense;
• the time that has passed since the offense occurred;
• the nature of the position being sought;
• the connection between the offense and the responsibilities of the role; and
• any evidence of rehabilitation or positive conduct since the offense; and the accuracy of the underlying criminal record.

This framework must be applied uniformly across all candidates and memorialized in writing.

Employers also must undertake a two-step adverse action notice process that gives applicants a structured opportunity to respond before a final employment decision is reached.  When an employer is considering taking an adverse action based on criminal history, it must first issue a written pre-adverse action notice that identifies the specific record being relied upon and allows the applicant time to respond—whether to contest the accuracy of the record or to provide context such as evidence of rehabilitation.  Only after that response period has passed may the employer issue a final adverse action notice confirming the decision.

Separately, whenever an employer discloses that a position is subject to a background check following a conditional offer—or whenever an applicant voluntarily discloses criminal history at any point in the process—the employer must provide the applicant with a written summary of the act’s requirements and a copy of the Washington Attorney General’s Fair Chance Act Guide for Employers and Job Applicants.

What Employers Must Do Now

The amended Fair Chance Act requires employers to meaningfully rethink their hiring and screening practices.  Employers should review and update their hiring materials and train hiring managers on the new procedures and documentation requirements.  Violations could result in penalties of up to $15,000 per violation.