By: Yoyo Rita
Recently, a slew of regulatory laws have been passed by various state legislatures, from Washington and California, to Missouri and Illinois. These laws have one thing in common: to address how and when employers can access job applicants’ personal information—such as criminal history or consumer credit reports. Many of these new laws are classified as “Clean Slate laws,” which allow for people with a criminal record to have certain offenses expunged or sealed from their public record. While these new laws vary in scope and objective, they all seek to address the state’s “filtering” of citizen data, before employers even access applicants’ data in background checks.[1] The need for such laws has been made all the more prescient with the rise of AI to access and evaluate applicant data, in an ever-competitive job market.
Today’s case study is the recent Fair Chance Act,[2] passed by Washington State in August 2025. It serves as an illustrative example of this regulatory trend we see arising across the country. The law, at its core, seeks to give those with a criminal record equal access to employment, and to curb unfair employment practices that limit work opportunities for those with criminal records before they are even evaluated for their qualifications. Specifically, the law dictates firstly that, “Job applications may not include any question seeking information about an applicant’s criminal record.”
Furthermore, and perhaps most interestingly, the law states that unless an applicant is determined to be qualified and the employer makes them an offer of employment, the employer cannot do any of the ten following things as relates to an applicant’s criminal history:
- Inquire verbally or in writing about an applicant’s criminal record;
- Receive information through a criminal history background check;
- Otherwise obtain information about an applicant’s criminal records;
- Implement policies or practices that automatically or categorically exclude job applicants with a criminal record, including rejecting applicants for failure to disclose a criminal record;
- Reject an applicant or deny an employee a promotion based on their juvenile conviction record.
- Reject an applicant or deny an employee a promotion based on their arrest record other than an adult arrest when the applicant or employee is out on bail or released on their own personal recognizance pending trial.
- Reject an applicant or deny an employee a promotion solely based on their adult conviction record, unless the employer has a legitimate business reason (as defined at RCW 49.94.005(6)) for doing so.
- Reject an applicant or deny an employee a promotion based on their criminal record without first:
- Notifying and identifying to the applicant or employee the record on which the employer is relying on for purposes of assessing its legitimate business reason, and
- Holding the position open for a minimum of two business days to provide the applicant or employee with a reasonable opportunity to correct or explain the record, or to provide information regarding their rehabilitation, good conduct, work experience, education, and training.
- Reject an applicant or deny an employee a promotion based on their criminal record without providing the applicant or employee with a written decision that includes specific documentation as to the employer’s reasoning and assessment of each of the relevant factors required by RCW 49.94.005(6)(b)(i)-(iv), including but not limited to:
- Impact of the conviction on the position or business operations, and
- The employer’s consideration of the applicant’s or employee’s rehabilitation, good conduct, work experience, education, and training.
- Terminate, suspend, discipline, demote, or deny a promotion to an employee because the employee, or a person acting on behalf of the employee, makes a good faith report, orally or in writing, to the employer, the attorney general, a labor organization, or others of a violation or suspected violation of the Washington Fair Chance Act or otherwise informs others of the requirements of the law.
This law is an important change for employers, and their HR teams, to consider in the state of Washington. Beyond that, it also reflects a nationwide impulse (reflected in many politically varied states) to implement government regulation of job applicant data.
HR professionals, whether in-house or hired as outside consultants, should keep these shifting regulatory trends in the foreground of their awareness. In our data-saturated employment landscape, it is important to uphold applicant privacy and to stay abreast of new employment law mandates.
[1] https://www.forbes.com/sites/alonzomartinez/2026/08/10/employment-law-is-becoming-the-law-of-information/
[2] https://www.atg.wa.gov/fair-chance-act