Seattle City Council Wants to Ban Employers' Access to Criminal Records

November 7, 2012

Seattle is often the incubator for bad business policy. Last year the city became one of the few in the nation to mandate paid sick leave for all workers.  Now the City Council is considering an ordinance that would make Seattle one of the few to limit employers’ ability to access public records and conduct background checks on potential employees. 

If the proposal is approved, employers in Seattle would no longer be able to inquire about a potential employee’s criminal history, nor would they be able to conduct a background check until a conditional offer of employment is given.  The proposed ordinance would also prohibit employers from refusing to hire an applicant because of a past arrest or conviction, unless the employer can show a “direct relationship” between the public criminal record and the job for which the individual has applied.

Supporters of the so-called “Job Assistance Legislation” contend limitation would increase public safety by reducing the likelihood of criminal recidivism—the theory being that when those with a criminal record cannot find a job, the chances they will become a repeat offender increase.

Efforts to help those with a criminal record find a job are laudable, but this proposal has unintended consequences.

Background checks are an important aspect in the hiring process.  The U.S. Small Business Administration estimates that for every dollar invested in employment screening, employers see a return on investment ranging from five to 16 dollars. Background checks improve productivity, reduce absenteeism, lower turnover, and most importantly, decrease employer liability for potential criminal acts committed by their employees. 

Employers understand what is at stake when it comes to making an informed hiring decision.  Companies that have hired employees with a criminal record who then go on to commit a criminal act have been successfully sued.  The online magazine HR Management reports the average negligent hiring settlement is today over $1 million, as courts have repeatedly affirmed it is an employer’s duty to exercise reasonable care when hiring potential employees. Imagine the cable repairman coming to your home, and the cable company not knowing his full background.

Bottom line, employers have a moral and legal obligation to ensure a safe environment for their employees and their consumers.  Accordingly, 69% of employers conduct background checks; 52% of those employers use criminal screening to reduce the liability of negligent hiring and 49% to ensure a safe working environment for employees.

Under Seattle’s new proposal, employers would be no longer be allowed to use public records to conduct background checks early on in the hiring process in order make fully informed decisions.  Only once employers have reached a conditional employment offer could a background check be done, and the offer could only be revoked if the crime is directly related to the nature of the position.  The proposed ordinance contains ambiguous language that would leave employers open to both discrimination and negligence lawsuits, among other legal concerns.

Removing employers’ decision-making power when it comes to who they hire is not only bad policy, it is unnecessary.

The U.S. Equal Employment Opportunity Commission (EEOC) already enforces fairness rules when employers are considering applicants with criminal arrest and conviction histories.  The EEOC recently fined PepsiCo Inc. $3.13 million for that company’s blanket policy of denying jobs to any applicant with an arrest or conviction.  The EEOC contended Pepsi’s policy discriminated against minorities, specifically African Americans and Latinos, because the ratio of those minorities with criminal records is far greater than Caucasians’.  To reinforce its decision, the EEOC issued new guidelines making it clear that employers cannot refuse to hire someone solely because the applicant had been arrested or convicted. 

Three members of the U.S. Commission on Civil Rights oppose the new EEOC guidelines, citing research showing background checks actually increase minority employment.  The research found that of companies that utilized background checks; 12% of their last hires were black employees. With companies that did not perform background checks, only 3% of their last hires were black employees.  Researchers attribute these percentages to the ability of background checks to disprove racial bias. 

Seattle already imposes a greater burden on business owners than any other city in the state.  Seattle City Council members should rethink the real impact of the proposed criminal background ordinance on businesses and minority communities. Blocking access to criminal records will not increase workplace safety, but it will increase employer liability and make it harder expand opportunities and create jobs in Seattle.

Melanie Stambaugh, Research Assistant


I couldn't agree with you

I couldn't agree with you more. The proposed ordinance is a drastic measure that would create an unprecedented legal standard. The legal standard proposed in the new ordinance goes far beyond what the courts, Congress and even the EEOC require an employer to consider. It would require a “direct relationship” between the criminal offense and the job sought, and would require that the employer could “reasonably foresee” whether hiring the individual would result in harm or injury. This standard is a far stretch from the already cumbersome test advocated by the EEOC in its guidance and would require employers to exercise superhuman powers or otherwise face the threat of legal action.

We actually posted a blog on this topic that your readers might find interesting

I was wondering if you could

I was wondering if you could clarify where exactly you found this information:

"The U.S. Small Business Administration estimates that for every dollar invested in employment screening, employers see a return on investment ranging from five to 16 dollars."

What study or report did that come from?