The Washington State Legislature has been busy as usual this session.

Two bills with significant implications for employers operating in Washington have recently been signed into law by Governor Bob Ferguson: a state “mini-WARN” (Worker Adjustment and Retraining Notification) Act and amendments to Washington’s Fair Chance Act (WFCA), which covers background checks in the employment context.

This Insight summarizes these recently signed laws and their potential consequences for employers.

Washington’s New Mini-WARN Act

Senate Bill 5525, also known as the Securing Timely Notification and Benefits for Laid-Off Employees Act, creates a new state law effective July 27, 2025, that requires notice to certain workers facing employment loss due to a reduction in force, i.e., a business closing or mass layoff. Many employers are already familiar with the federal WARN Act. Employers that employ 50 or more employees in the state of Washington must also comply with Washington’s requirements.

As with the federal WARN Act, Washington law prohibits an employer from enacting a “business closing” or “mass layoff” until the end of a 60-day period. That period begins when the employer serves written notice that must contain certain specific information regarding the closing or layoff to both the affected employees (or, if applicable, the employee’s bargaining representative) and the Washington Employment Security Department (ESD). The information required in the notice is the same information required in a notice provided under the federal WARN Act. In a move that diverges from federal WARN, employers may not include an employee in a mass layoff if the employee is currently on Washington Paid Family or Medical Leave, with some exceptions for circumstances that were not reasonably foreseeable, completed construction projects, and natural disasters.

Under the new Washington law, an “employee” is a worker who works an average of 20 or more hours per week and has been employed by the employer for at least six of the 12 months preceding the notice requirement (see below). 

A “business closing” is a shutdown of a single site of employment of one or more facilities that will result in “employment loss” (termination, other than for cause, voluntary separation, retirement, or a layoff for more than six months) for 50 or more full-time employees. A “mass layoff” is a reduction in employment force that results in an employment loss during any 30-day period of 50 or more full-time employees. "Single site of employment" means a single location or a group of contiguous locations, such as a group of structures that form a campus or business park or separate facilities across the street from each other.

“Employment loss” does not include circumstances when a business closing or mass layoff is the result of the relocation or consolidation of part or all of the employer's business if, (1) before the business closing or mass layoff, the employer offers to transfer the employee to a different site of employment within a “reasonable commuting distance” and (2) there is no more than a six-month gap in employment.

In the case of the sale of part or all of a business, the seller is responsible for providing notice of any business closing or mass layoff that will take place up to and on the effective date of the sale. The buyer is responsible for providing notice of any business closing or mass layoff that will take place thereafter.

An employer that has previously announced and carried out a short-term mass layoff of three months or less that is extended beyond three months due to business circumstances not reasonably foreseeable at the time of the initial mass layoff is required to give notice when it becomes reasonably foreseeable that the extension is required. Although the law is not explicit, it appears that in this limited circumstance, the mass layoff would be treated as an employment loss from the date of the notice of extension. Otherwise, a mass layoff extending beyond three months from the date the mass layoff commenced for any other reason must be treated as an employment loss from the date of commencement of the initial mass layoff.

The following are exceptions to Washington’s written notice requirement in the event of a business closing or mass layoff:

1. The employer is actively seeking capital or business that would allow avoidance of the mass layoff, and when providing notice would have precluded the employer from obtaining the needed capital or business.
2. The mass layoff or business closure is caused by circumstances not reasonably foreseeable at the time notice is required.
3. The mass layoff or business closure is caused by a natural disaster; or
4. The mass layoff occurs at a construction project, under certain circumstances.

If an exception applies only to part of the 60-day notice window, an employer is required to give notice at the time the exception is no longer applicable. 

As with the federal WARN Act, employers that do not provide notice to employees and whose business closure or mass layoff does not fall under an exception to the notice requirement are liable for the following each day notice is not provided: (1) back pay for each day of violation, up to 60 days, and (2) the value of benefits to which the employee would have been entitled had their employment not been lost, up to 60 days. The employer may credit any wages paid during the period of violation, or certain other payments made, against the penalty amounts owed. The employer is also subject to a civil penalty of up to $500 per day for each day of the violation, unless the employer pays employees the amounts for which the employer is liable within three weeks from the date the employer orders the mass layoff, relocation, or termination.

The ESD can bring an action on behalf of an aggrieved employee for violations of the new law. An aggrieved employee or their bargaining unit may also bring an individual civil action against the employer. The statute of limitations for violations of this law is three years, and the ESD, the employee, or the employee’s bargaining unit may be entitled to attorneys’ fees if they prevail. If a court determines that an employer conducted a “reasonable investigation in good faith and had reasonable grounds to believe that its conduct was not a violation of this chapter,” the court has discretion to reduce the penalty assessed against the employer.

Updates to Criminal Background Checks Under Washington’s Fair Chance Act

Many employers use criminal background checks as part of their onboarding process. HB 1747 amends the WFCA, which was enacted in 2018, significantly expanding the WFCA’s scope and aligning Washington law with stricter background check laws in states such as California and New York. The amendments take effect on July 1, 2026, for employers with 15 or more employees across all states and on January 1, 2027, for employers with fewer than 15 employees.

Under the amended WFCA, an employer is prohibited from asking for or obtaining any information about an applicant’s criminal record until the employer determines that the applicant is otherwise qualified for the position and makes a conditional offer of employment to the applicant. In addition, employers cannot implement a policy or practice that automatically or categorically excludes an applicant with a criminal record. This includes rejecting an applicant solely because they failed to disclose their criminal record prior to the initial determination that they are qualified. A “criminal record” now includes not only the actual record of an arrest or citation for criminal conduct but also “information about” an arrest or citation, expanding the scope of the criminal background information subject to the WFCA. The phrase “information about” is not defined in the amendments.

An employer is permitted to disclose to the applicant that the position is subject to a background check after a conditional offer of employment is made. Similarly, an applicant may voluntarily disclose, without solicitation by the employer, information about the applicant's criminal record during an interview. If such a disclosure is made by either party, the employer must immediately inform the applicant in writing of the requirements relating to criminal history and tangible adverse employment actions under the amended WFCA and provide the applicant a copy of the Washington State Attorney General Office’s (AGO’s) Fair Chance Act Guide for Employers and Job Applicants (“Fair Chance Act Guide”).[1] 

Certain employers are exempt from the WFCA’s requirements, including employers hiring individuals with unsupervised access to children or vulnerable adults, employers expressly allowed or required to consider an applicant’s criminal history under state or federal law, law enforcement and criminal justice agencies, and an employer seeking a non-employee volunteer.

An employer's ability to carry out a tangible adverse employment action based on an applicant's or employee's criminal history is limited. A “tangible adverse employment action” is a decision by an employer to reject an otherwise qualified job applicant or to terminate, suspend, discipline, demote, or deny a promotion to an employee. An employer is prohibited from carrying out a tangible adverse employment action based on an applicant’s or employee’s arrest record or juvenile conviction record, except for an adult arrest in which the individual is out on bail or released on their own personal recognizance pending trial.

The most significant amendment to the WFCA is that it permits an employer to carry out a tangible adverse employment action based on an applicant’s or employee’s adult conviction record only if the employer has a legitimate business reason for doing so. The employer has a “legitimate business reason” if the employer believes in good faith that the nature of the criminal conduct in the conviction record will:

1. have a negative impact on the employee's or applicant's fitness or ability to perform the position sought or held, or
2. harm or cause injury to people, property, business reputation, or business assets, and the employer has considered and documented certain factors, including:
   1. the seriousness of the conduct underlying the conviction,
   2. the number and types of convictions,
   3. the time that has elapsed since the conviction (excluding periods of incarceration),
   4. specific duties of the position,
   5. the place and manner in which the position will be performed (e.g., whether it is a public-facing role), and
   6. any verifiable information related to the individual's rehabilitation, good conduct, work experience, education, and training, as provided by the individual.

Prior to carrying out a tangible adverse employment action, the employer must notify the applicant or employee and identify the record on which the employer is relying to assess the legitimate business reason. The employer must then hold the position open for at least two business days to give the applicant or employee a reasonable opportunity to correct or explain the record or to provide information of rehabilitation, good conduct, work experience, education, and training.

If the employer makes a tangible adverse employment decision based on the conviction record, the employer must provide the applicant or employee with a written decision that includes specific documentation of its reasoning and an assessment of the relevant factors described above. 

Employers are prohibited from carrying out any tangible adverse employment action against any employee because the employee (or a person acting on behalf of the employee) makes a good-faith report to the employer, the AGO, a labor organization, or others of a violation of the requirements relating to a tangible adverse employment action or otherwise informs others of the requirements.

The amendments to the WFCA include steeper penalties for violations. The AGO, which enforces the WFCA, may impose (1) a monetary penalty of up to $1,500 for the first violation or waive penalties for first-time or de minimis violations and instead provide education and a warning to deter future noncompliance; (2) a penalty of up to $3,000 for the second violation; and (3) a penalty of up to $15,000 (up 15 times from the original penalty of $1,000) for third and subsequent violations. The AGO is no longer required to use a stepped enforcement approach for violations. In addition, the AGO may pursue legal action to obtain unpaid wages, unpaid administrative penalties, damages, and reasonable attorneys’ fees and costs.

As with prior versions, there is no private right of action for violations of the WFCA.

What Employers Should Do Now

Employers with employees in Washington State should consider taking the following steps:

• Consult with employment counsel before any business closing or mass layoff to ensure compliance with both the federal WARN Act and Washington State’s new mini-WARN Act.
• Update background check policies, including pre- and post-adverse action notifications, for compliance with the amendments to the WFCA.
• Work with employment counsel to establish new protocols for your background check process, including how staff will consistently perform the “legitimate business reason” test for applicants and employees with criminal histories.

Staff Attorney Elizabeth A. Ledkovsky contributed to the preparation of this Insight.

ENDNOTE

[1] While the Fair Chance Act Guide is currently available on the AGO’s website, we believe the guide will be updated once the amendments to the WFCA go into effect.