1. the length of time since the conviction;
2. the number of convictions that appear on the conviction record;
3. the nature and severity of the conviction and its relationship to the safety and security of others;
4. the facts or circumstances surrounding the conviction;
5. the age of the employee at the time of the conviction; and
6. evidence of rehabilitation efforts.

In addition, "if, after considering the mitigating factors..., the employer makes a preliminary decision that the employee's conviction record disqualifies the employee, the employer shall notify the employee of this preliminary decision in writing," and the notice shall include the following:

1. notice of the disqualifying conviction or convictions that are the basis for the preliminary decision and the employer's reasoning for the disqualification;
2. a copy of the conviction history report, if any; and
3. an explanation of the employee's right to respond to the notice of the employer's preliminary decision before that decision becomes final. The explanation must inform the employee that the response may include, but is not limited to, submission of evidence challenging the accuracy of the conviction record that is the basis for the disqualification or evidence in mitigation, such as rehabilitation.

The employee will have 5 days to respond to the notification before the employer can make a final decision. "If the employer makes a final decision to disqualify or take an adverse action solely or in part because of the employee's conviction record, the employer shall notify the employee in writing of the following:

1. notice of the disqualifying conviction or convictions that are the basis for the final decision and the employer's reasoning for the disqualification;
2. any existing procedure the employer has for the employee to challenge the decision or request reconsideration; and
3. the right to file a charge with the Department."

A post-secondary educational institution with information about a past employee's sexual misconduct will be required to disclose such information during a reference or background check for employment purposes, even if the employer does not ask.

Additionally, RCW 28B.112.080 implements current requirements that became effective on October 1, 2020. These requirements mandate that an employer obtain a signed statement from an applicant with certain provisions. If the applicant refuses signature, the employer may not hire the applicant. The written provisions include:

• A declaration whether the applicant is a current or former subject of sexual misconduct, is currently being investigated for sexual misconduct, or left during a violation of any sexual misconduct policy at a current or past employer
• An authorization for the employer to contact past and current employers regarding any incident of sexual misconduct¹
• A release of liability for the applicant's current and past employers, and employees acting on behalf of that employer

By July 1, 2021, post-secondary educational institutions must have a procedure in place for disclosing information requested under RCW 28B.112.080. Post-secondary educational institutions are expected to keep all personal information of the complainant and any witnesses confidential, unless those individuals agree to disclose such information.

¹ Past and current employers will be required to provide any relevant documents.

The Bill would also remove three provisions involving damages:

1. BIPA's $1,000 liquidated damages provision for "negligent violations" of the Act;
2. BIPA's $5,000 liquidated damages provision for "intentional or reckless" violations of the Act;
3. BIPA's "for each violation" language that proceeded these penalties.

The Bill will limit an individual's recovery and attorney's fees and liquidated damages that would have been available for individuals who prove that an entity willfully violated BIPA. Additionally, it would exempt any private entity that has employees covered by a collective bargaining agreement "that provides for different policies regarding the retention, collection, disclosure, and destruction of biometric information." Lastly, the Bill would remove the requirement that a company obtain a "written release" and add language to BIPA that informed written consent would satisfy BIPA's consent requirement.

Plaintiff's suit alleges that the company violated New York City's Fair Chance Act by conducting the background check and considering his criminal history prior to extending a conditional job offer. Furthermore, Plaintiff is requesting permission from the court to represent a class of job applicants with criminal records who were denied employment by the employer in New York City.

The employer said it is reviewing the allegations and will defend the lawsuit.

Plaintiff's claims are based on the premise that the Defendant failed to provide proper disclosures to employees and applicants prior to conducting a background check. The complaint further alleges that the employer failed to secure requisite authorizations as required under the FCRA. Furthermore, the Plaintiff alleges that the contents of this background check led to his termination.

The proposed class includes all prospective employees and/or employees employed by, or formerly employed by Defendant in the United States who, as a condition of employment, were required to submit to a background check and who filled out Defendant's standard FCRA disclosure form at any time during the period beginning five years prior to the filing of the complaint. Grant and the proposed FCRA class seek compensatory and statutory damages, penalties and punitive damages.

Defendant responded to allegations by asserting a total of 49 "separate and distinct" defenses indicating compliance with both the FCRA and the ICRAA in handling both Grant's and the proposed class members' consumer reports. One of Defendant's specific claims is that the Plaintiffs failed to read Defendant's background check disclosure thoroughly or at all.