Employee Background Check Laws in Washington

The Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq., establishes the primary federal framework for background checks. The FCRA requires employers to obtain written consent from job applicants before ordering a consumer report (background check) from a third-party consumer reporting agency. Once obtained, if the employer intends to take adverse action based on information in the report, the employer must provide the applicant with a copy of the report and a summary of their FCRA rights before taking action.

The FCRA applies to all employers who use third-party consumer reporting agencies to conduct background checks, regardless of size. The law covers criminal history, credit reports, driving records, and other background information. The Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) enforce the FCRA. Remedies for violations include actual damages, statutory damages up to $1,000 per violation, punitive damages, and attorney's fees. Additionally, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, prohibits discrimination in hiring based on race, color, religion, sex, or national origin—including through discriminatory application of background check policies. The Equal Employment Opportunity Commission (EEOC) enforces Title VII and has issued guidance restricting blanket exclusions for criminal history.

Washington State imposes stricter requirements than federal law in several critical areas. Under Washington RCW 19.86.0208, employers are prohibited from obtaining or using consumer credit reports for employment decisions, with limited exceptions for certain positions involving financial responsibility or access to sensitive data. This is significantly more restrictive than the FCRA, which permits credit checks if job-related.

Washington RCW 19.255.010 requires employers to provide written notice to applicants that a background check will be conducted and to obtain signed written consent before ordering the report. The consent form must be separate from other application materials and clearly disclose the authorization. This is more specific than the FCRA's general written consent requirement.

Under Washington RCW 9.97.020, employers cannot automatically disqualify applicants based on criminal history. Instead, employers must assess the nature and relevance of the offense to the specific job, the time elapsed since conviction, and evidence of rehabilitation. This individualized assessment requirement is not mandated by federal law. Washington's law applies to all employers, regardless of size, though larger employers face heightened scrutiny.

Washington also provides a private right of action under its Consumer Protection Act (RCW 19.86), allowing employees and applicants to sue for violations directly without relying solely on government enforcement. Remedies include actual damages, statutory penalties of up to $2,000 per violation, and attorney's fees. This is broader than federal FCRA remedies in some respects. Finally, Washington does not have a strict "ban-the-box" rule preventing employers from inquiring about criminal history on applications, but the state's restrictions on using that history are among the strictest in the nation.

Washington law contains narrow exceptions to the credit check prohibition under RCW 19.86.0208. Employers may obtain credit reports for positions involving financial responsibility (e.g., accounting, treasury roles), access to confidential financial information, positions bonded by insurance companies, or roles managing government funds. The employer bears the burden of proving the position falls within an exception.

Regarding criminal history, RCW 9.97.020 provides an exception for positions where a conviction is specifically incompatible with the duties—for example, a conviction for child abuse cannot automatically disqualify someone from childcare, but a conviction for violence might be relevant to a security position. However, employers must still conduct individualized assessment rather than applying blanket policies.

Small businesses are not exempt from Washington's requirements, though the Consumer Protection Act provides some additional protections for employers acting in good faith. At-will employment remains the default in Washington, and background check violations do not create an explicit wrongful termination claim on their own—violations are pursued through consumer protection or FCRA channels.

Federal FCRA preemption applies only to the extent state law contradicts FCRA. Since Washington's law is generally stricter (more protective of applicants), both statutes apply. Employers using third-party background check vendors may face liability even if the vendor failed to obtain proper consent, as employers are responsible for FCRA compliance.

Positions involving direct unsupervised access to children, the elderly, or disabled individuals may have additional criminal history inquiry rights under separate licensing laws, but the individualized assessment requirement still applies. Sealed or expunged convictions generally cannot be inquired about or considered under Washington law.

Step 1: Document the violation and gather evidence. If you were denied a job or terminated based on a background check issue, retain all communications from the employer, the job posting, any written consent forms you signed (or were not asked to sign), copies of your background report if provided, and any notice of adverse action. Document dates, times, and names of people involved. If a credit report was used improperly, request a copy from the employer or the background check company. Keep records of any attempt to correct inaccurate information in the report.

Step 2: Attempt internal resolution if feasible. Contact the employer's HR department or hiring manager in writing (email is acceptable) to request clarification of the background check process and explain the violation—for example, "I was not provided written consent documentation before my background check was conducted" or "A credit report was improperly obtained for a non-financial position." Request a response within 10 business days. While not required, this creates documentation and may prompt correction without litigation. Keep copies of all correspondence.

Step 3: File a complaint with Washington's Attorney General Consumer Protection Division or the Federal Trade Commission. For state violations under RCW 19.86 or RCW 19.255.010, submit a complaint to Washington Attorney General, Consumer Protection Division, 800 Fifth Avenue, Suite 2000, Seattle, WA 98104, or file online at atg.wa.gov. Include copies of all documentation, the company name, job position, and dates involved. There is no filing deadline for state complaints. For FCRA violations, file with the FTC at reportfraud.ftc.gov or via mail to Federal Trade Commission, Consumer Sentinel Network, 600 Pennsylvania Avenue NW, Washington, DC 20580.

Step 4: The investigation process varies by agency. The Washington Attorney General's office reviews complaints and may investigate, sending information requests to the employer. FCRA complaints are compiled into the Consumer Sentinel Network and may trigger FTC or state enforcement actions, though the FTC does not individually investigate most complaints. Investigations typically take 30-90 days if the agency decides to pursue the matter. The employer may be contacted for a response. You will be notified of any action taken, though state agencies may not close all complaints with individual updates.

Step 5: Consult an employment attorney if the violation resulted in significant job loss or damages. Washington allows private lawsuits under both the Consumer Protection Act (RCW 19.86) and the FCRA. An employment or consumer protection attorney can evaluate whether you have grounds to file a civil suit for actual damages (lost wages, emotional distress), statutory damages (up to $2,000 per violation in Washington), and attorney's fees. Many attorneys offer free initial consultations. If you intend to sue, do so within 2 years of discovering the violation (FCRA) or within the statute of limitations for Consumer Protection Act claims (typically 4 years from the violation). An attorney can also help you dispute inaccurate information in your background report directly with the reporting agency.