Hiring Procedures

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Overview

There are relatively few statutes that establish procedures to be followed when hiring public employees, except for civil service employees. There are, however, various statutes that set out prohibitions applicable to the hiring process, such as prohibitions against discrimination in hiring, which are discussed below.

Many local government jurisdictions have established procedures for hiring non-civil service employees. Typically, those provisions require posting and publication of employment opportunities, and a procedure for interviewing applicants. If the jurisdiction has adopted such procedures, they must be followed, except if waived or modified by the legislative body in any particular situation.

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Hiring Authority

The authority to hire is controlled, for the most part, by state statute. In a code city, for example, hiring is done either by the mayor if the city operates under the mayor-council plan of government (RCW 35A.12.090) or by the city manager if the city operates under the council-manager plan (RCW 35A.13.080(2)).

The mayor is also given the power to hire in second class cities (RCW 35.23.021) and towns (RCW 35.27.070). Under the council-manager plan of government, the city manager is authorized to hire in a second class city or a town (RCW 35.18.060(2)). In a commission city – and currently there are none – the commission appoints officers and employees (RCW 35.17.080). Hiring decisions in charter cities and counties are made according to their individual charters.

While the board of county commissioners establishes and sets the compensation for all positions, the elected officials (auditor, treasurer, prosecuting attorney, etc.) actually make the appointments in their respective departments (RCW 36.16.070 and Osborn v. Grant County (1996)).

For special purpose districts, the authority to hire rests with either the legislative body or the chief executive, such as the superintendent, under their respective statutes.

Although state law sets the basic hiring parameters, local regulations and customs may change the process by delegating the actual hiring authority to department heads or other management employees.

Certain positions may be covered by civil service, such as sheriff deputies, police officers, and firefighters. If civil service does apply, the hiring authority must hire from the candidate or candidates certified to them by the civil service commission. For additional information, see our page on Civil Service.

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Job Description and Required Qualifications

Before the process can begin, there must be an authorized and vacant position available into which an applicant may be appointed or hired.

In a county, the need for a deputy or an employee likely is first noted by a department head or one of the county's independently elected officials. The actual authorization for the position, however, is made by ("with the consent of") the board of county commissioners (RCW 36.16.070). (In charter counties, reference must be made to the charter to determine responsibilities and authority.) The commissioners also establish salary and other compensation for each position.

The process is similar in a city. The city or town council creates each position and determines its salary and benefits (RCW 35.23.021 for second class cities; RCW 35.27.070 and 35.27.130 for towns; RCW 35A.11.020, 35A.12.020, and 35A.13.090 for code cities; RCW 35.18.080 for non-code, council-manager cities; and RCW 35.17.130 for commission cities). While each position could be created separately, it is also possible to authorize positions and establish salaries by listing each in the annual or biennial budget (RCW 35.33.051 and 35.34.070; RCW 35A.33.050 and 35A.34.070).

The first step in matching candidate qualifications to job requirements is the development of a realistic job description. The job description should set out the purpose of the job and can include its educational, experience, skill, and knowledge requirements.

The job description should identify the position's essential functions (and identify them as such), as well as other functions that may be marginally required. In addition, the description should list any licenses or endorsements that may be required (such as a commercial driver's license), information regarding expected contacts (such as meeting regularly with the public or routinely interacting with elected officials), and organizational relationships (such as who the position reports or supervises). If there are technical or physical requirements, such as the ability to use certain equipment or to routinely lift up to a certain weight, they should be listed, as should workplace hazards or safety concerns.

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Advertising and Recruitment

An employer may want to first open a position to its current employees; in such an instance, it may choose to internally post the job on appropriate internal communication channels. Some collective bargaining agreements or policies require that new or vacant positions be first made available to union membership before they are advertised publicly.

Although it may be a good idea to advertise an open position publicly to help ensure the hiring of the most qualified individual, neither federal nor state law requires advertising. If the person authorized to fill a position wanted to, they could hire the first person coming through the door without any advertising. Local government regulations, however, as well as generally accepted hiring practices, may require that open positions are advertised, and if such requirements exist they must be followed.

If a position is advertised, any employer with 15 or more employees must disclose the position's wage scale or salary range and a general description of all of the benefits and other compensation to be offered to the hired applicant (RCW 49.58.110). For details and examples, see the Department of Labor & Industries Administrative Policy ES.E.1 Equal Pay and Opportunities Act.

In addition to advertising an open position, a local government may choose to actively solicit or recruit candidates. Recruitment may encourage applications from more qualified and experienced candidates who might not otherwise be aware of the position. The cost of recruitment is specifically recognized as an expense that may be paid through an emergency expenditure (for cities, see RCW 35.33.081, 35.34.140, 35A.33.080, and 35A.34.140). Recruitment may be handled in-house or through a job placement, "head hunter" firm. State law allows the direct payment of lodging and transportation costs of candidates who are sought to be interviewed.

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Inclusive Hiring Practices

Initiative 200, approved by the state's voters in 1998 and codified in RCW 49.60.400, prohibits "preferential treatment" in public employment based on race, sex, color, ethnicity, or national origin.

While local governments cannot adopt preferential treatment in hiring, they can still implement efforts to have a workforce representative of their community’s demographics. For examples, see our page on Diversity, Equity, and Inclusion Resources for Local Governments.

In addition, local government employers must be careful to avoid asking questions which could potentially discriminate against certain job applicants or introduce bias into the hiring process, as described in the section below on Interviews and Interview Questions.

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Application Form

If a successful job description has been prepared, it should be a relatively easy task to develop an application form that will draw out relevant information from applicants. Some of the entries will be obvious: the employing agency needs to know the name, address, telephone number, and email address of those applying.

If a specific level of educational background is required or desired for the position, the application should include a section for listing the person's high school, business or technical school training, undergraduate and graduate studies, and any "other courses" taken that may be relevant to the position sought.

Similarly, the application needs a section for listing the applicants' past employment history, which might include past employers, supervisors, job titles, duties, reasons for leaving, and information about which previous supervisors may be contacted for reference purposes.

The application form may ask the applicant what special skills they possess (such as ability to operate a 10-key adding machine, typing speed, or familiarity with particular software programs). The form also may ask if the person is licensed to drive, or if they are a member of a professional organization.

Often an application form will request a list of references who can be contacted for additional information (this would be a list in addition to past supervisors). Since this list is chosen by the applicant, the references' comments often tend to be consistently positive. Nevertheless, the relationship between the applicant and the listed references and references' feedback may be useful in making a final hiring decision.

For certain positions, an application form may include supplemental questions related to that position’s job duties, whether multiple choice or open-ended.

For more information on questions that can and cannot be asked, see the section below on Interviews and Interview Questions.

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Reviewing Applications

Depending upon the number of applications received, it may be a good idea to reduce the number of applicants who will be considered and interviewed. Interviews, background checks, reference checks, and testing are time-consuming and can be expensive; limiting the number of applicants under consideration can help reduce the time and expense required.

An employer may create a committee to review resumes and applications, and this committee will then develop a list of candidates for further consideration. Whatever approach is used, it should result in a pool of candidates who, presumably, will satisfy the requirements and abilities listed in the job description.

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Interviews and Interview Questions

There are different aspects to the interview process: asking the right questions to select the most qualified applicant and avoiding questions that will get you in trouble. How best to ask questions, such as by using open-ended questions instead of closed-ended ones, is covered in some of our Recruitment and Hiring blog posts.

According to an article from the Society for Human Resource Management:

When interviewing applicants, employers should consider adopting a standardized set of questions. By asking all candidates interviewing for the same position the same questions, companies can minimize any personal biases and be more objective in assessing who would be best prepared for a job. Companies should also include diverse employees as decision-makers in the recruitment process for that same reason.

In addition to minimizing bias and encouraging objectivity, pre-drafting a standard set of questions can also help an employer avoid asking improper questions.

Employers must be very careful when asking questions about certain topics due to restrictions in both federal law and state law, including those identified in the Washington Law Against Discrimination (chapter 49.60 RCW and specifically RCW 49.60.180) and outlined in detail in WAC 162-12-140 regarding fair and unfair preemployment inquiries.

With minor exceptions such as questions to affirm a bona fide occupational qualification, employers must be careful asking questions about:

• Age. While questions about a person's date of birth or proof of true age are permitted, employers must be careful not to ask questions suggesting a preference for employees under 40 years of age (WAC 162-12-140(3)(a) and RCW 49.44.090). However, an employer may establish minimum or maximum age limits for employees in certain positions requiring extraordinary physical effort, endurance, condition, or training, pursuant to RCW 49.44.090(1). There are also additional laws that apply to the hiring of minors under the age of 18; however, local governments are not required to obtain a minor work permit or parent/school authorization forms, as local governments  are excluded from the definition of "employer" in RCW 49.12.005(3) and WAC 296-125-015(4).
• U.S. citizenship. State regulations prohibit inquiries about applicants' citizenship (WAC 162-12-140(3)(c)). However, the federal Immigration Reform and Control Act of 1986 prohibits the hiring of an alien who is not authorized to work in the United States (8 U.S.C. § 1324a), so employers may ask whether the applicant is prevented from lawfully becoming employed because of visa or immigration status or whether the applicant can provide proof of a legal right to work in the United States after being hired.
• Criminal history. Questions regarding arrest history are allowed if the nature of the crime for which the arrest was made involved "behavior that would adversely affect job performance" and occurred within the last 10 years. If questions about a person's arrests are allowed, they must also delve into whether the charges are still pending, have been dismissed, or have led to a conviction. Similar rules apply to questions involving an applicant's convictions (WAC 162-12-140(3)(d)). Also see the section below on Criminal Background Checks. Law enforcement agencies and organizations that have a direct responsibility for the supervision, care, or treatment of children, mentally ill persons, developmentally disabled persons, and other vulnerable adults are exempt from this requirement and may ask about any type of arrests or convictions, even if they are unrelated to the job duties or older than 10 years (WAC 162-12-140(3)(b)).
• Marital status and/or family. Questions may be posed whether the person will be able to meet certain work schedules, whether there are responsibilities that would prevent them from meeting attendance requirements, and for the names of any relatives already employed by the agency. But otherwise, a candidate may not be asked about their marital status – including whether a candidate prefers "Mr.", "Mrs.", Ms.", etc. – children or childcare arrangements, spouse, relatives, or dependents (WAC 162-12-140(3)(e), (h), (j), and (p)).
• Height or weight. The interview should not include questions about a person's height and weight, unless the inquiry is based upon an actual job requirement and is consistent with business necessity (WAC 162-12-140(3)(g)).
• Race, ethnicity, or native language. Questions are not allowed about the applicant's race, color, lineage, ancestry, national origin, birthplace, or native tongue. This includes questions about an applicant’s name that would divulge information about lineage, ancestry, national origin, or descent (WAC 162-12-140(3)(j), (k), and (o)). However, employers may ask about an applicant’s ability to read, write, or speak foreign languages when such inquiries are based on job requirements.
• Religion or creed. Employers may not ask any questions about religion or creed, including questions about church affiliations or religious holidays observed (WAC 162-12-140(3)(q)).
• Sex, sexual orientation, or gender identity. Employers may not ask any questions concerning sex, sexual orientation, gender expression or identity, transgender status, or sex assigned at birth. Employers may ask whether the applicant has worked under any other names previously and, if so, what names, but they may not ask questions about a name that would divulge marital status, sexual orientation, or gender identity or expression (WAC 162-12-140(j), (s) and (t)).
• Pregnancy or disability. The applicant may be asked whether they are able to perform the essential functions of the job sought, with or without reasonable accommodation. Inquiries regarding the nature, severity, or extent of a disability are not allowed, nor are questions about whether the applicant requires reasonable accommodation prior to a conditional job offer or inquiries that are not job-related or consistent with business necessity (WAC 162-12-140(3)(f)). Employers may ask applicants about the duration of stay on the job or anticipated absences, provided that the questions are asked of all applicants regardless of gender, but employers may not ask questions related to pregnancy, medical history concerning pregnancy, and other related matters (WAC 162-12-140(3)(n)). (Also see our page on the federal Americans with Disabilities Act, which provides more information about prohibited discrimination related to qualified job applicants who have disabilities.)
• Wage or salary history. Employers may not seek the wage or salary history from a job applicant or from the applicant’s current or former employer, or require that the prior wage or salary history meet certain criteria (RCW 49.58.100). However, the employer may confirm the applicant’s wage or salary history if the applicant has voluntarily disclosed that information or after the employer has negotiated and made an offer of employment with compensation to the applicant.

After hire, an employer is not prohibited from making or keeping records of the protected status of employees, but the information obtained must be accessible only on a need to know basis and may not be used for a discriminatory purpose (WAC 162-12-140(1) and 162-12-180).

Violations of these state and federal laws can result in investigation by the Washington State Human Rights Commission (RCW 49.60.230) or the U.S. Equal Employment Opportunity Commission (EEOC).

Very small employers are exempt from certain state and federal employment anti-discrimination laws. For instance, the the Washington Law Against Discrimination (WLAD) and, by extension, the limitations on preemployment inquiries in WAC 162-12-140 do not apply to employers with fewer than eight employees (RCW 49.60.040(11)). Also see the EEOC webpage on Small Business Requirements.

However, it is still a good idea for small employers to follow the guidance above, not only from a public policy perspective but also because there are still certain anti-discrimination laws that apply to all employers regardless of size (such as RCW 49.44.090 prohibiting age-related discrimination and the Civil Rights Act of 1866, 42 U.S.C. § 1981, which prohibits discrimination on the basis of race). In addition, it is common for federal grants and contracts to include an anti-discrimination clause that a public employer, regardless of size, accepts by entering into the contract.

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Reference Checks

An employer, before hiring someone, can probably find out a great deal of information about the candidate's knowledge, experience, and work habits by asking for information from present and former employers and from others who are familiar with the applicant.

Current and former employers providing reference information about a current or former employee are immune from civil or criminal liability for disclosure of information about a current and former employee, if certain requirements are met (RCW 4.24.730). An employer is presumed to be acting in good faith and is immune from liability if the disclosure of information relates to the employee's ability to perform the job; the diligence, skill, or reliability with which the employee carried out the job duties; and the employee's avoidance of illegal or wrongful acts related to the job duties.

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Criminal Background Checks

The Washington Fair Chance Act (chapter 49.94 RCW) generally prohibits local governments and other employers from using criminal records as an initial candidate screening tool, with certain exceptions.

Generally, employers may not conduct criminal background checks or otherwise inquire, verbally or in writing, about an applicant’s criminal record until after the employer initially determines that the applicant is otherwise qualified for the position.

Similarly, employers may not advertise job openings in a manner that excludes people with arrest or conviction records from applying, such as using advertisements that state “no criminal background.” Employers are also prohibited from outright rejecting or disqualifying an applicant for not disclosing a criminal record before the employer has initially decided if the applicant is qualified for the position.

Once an employer has made an initial determination that a job applicant is otherwise qualified for the position, the employer can conduct a criminal background check or ask about criminal convictions at the next phase of the hiring process, and the employer may use that information in making a hiring decision. As detailed in the section on Interviews and Interview Questions, inquiries into arrests and convictions are allowed if the crime occurred within the last 10 years and the nature of the crime involved "behavior that would adversely affect job performance." The employer must also inquire whether the charges are still pending, have been dismissed, or have led to a conviction.

However, the Washington Fair Chance Act does not apply to certain hiring circumstances, including:

• Positions in law enforcement or criminal justice agencies (including courts);
• Positions with unsupervised access to children under the age of 18 or a vulnerable adult or person; and
• Any employer seeking a nonemployee volunteer (RCW 49.94.020).

In addition, there are specific statutes allowing or requiring criminal records checks of job applicants if the position would:

• Involve unsupervised access to children, developmentally disabled persons, or other vulnerable adults (RCW 43.43.832);
• Require a bond (RCW 43.43.815(1)(a)); or
• Involve access to information affecting national security, trade secrets, confidential or proprietary business information, money, or items of value (RCW 43.43.815(1)(b).

Such record checks are performed by the Washington State Patrol. The employing agency has 30 days following the receipt of any conviction record to notify the applicant of the record, and the record must be made available to the applicant (RCW 43.43.815(2)).

Local governments may deny employment based on prior conviction for a felony directly related to the position’s duties (RCW 9.96A.020). Generally, the felony conviction must have occurred within the past 10 years, although there are some exceptions to this 10-year time constraint. For instance, someone convicted of embezzlement or theft more than 10 years prior may not find employment at the county treasurer’s office.

In addition, local governments may generally not disqualify a qualified job applicant based solely on the applicant’s criminal history if the applicant has obtained a certificate of restoration of opportunity and meets all the other statutory and regulatory requirements (RCW 9.97.020). However, there are exceptions for criminal justice agencies, accountants, security guards, and certain other occupations.

Employers also must be careful not to violate Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e-3 et seq.), which prohibits employers from treating applicants and employees with similar criminal records differently because of race, color, national origin, religion, or sex, as well as prohibiting employers from using criminal records in a manner that disproportionately excludes members of a protected class, even if the underlying policies or practices are neutrally applied to all applicants and employees.

For instance, an employer may face liability if it routinely hires white applicants with criminal histories over people of color with substantially similar qualifications and substantially similar criminal histories. For more information, see the U.S. Equal Employment Opportunity Commission (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act.

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Credit Checks

State law restricts when a consumer report can be sought for employment purposes (RCW 19.182.020). An employer may not procure a consumer report when any of the information contained in the report bears on credit worthiness, credit standing, or credit capacity, with two exceptions:

• When the report is substantially related the individual's current or potential job, or
• When otherwise required by law.

Before the hiring agency can seek a report, it must notify the candidate of its intent and obtain a written consent; the consent must be a "stand alone" document, not just an authorization included as part of the job application form itself. The hiring agency must also notify the consumer reporting agency that consent has been obtained and that its report will not be used illegally.

If a consumer reporting agency is hired to prepare a "consumer report" (defined in 15 U.S.C. § 1681a(d)(1)) or an "investigative consumer report" (defined in 15 U.S.C. § 1681a(e)) about an applicant, certain disclosure requirements are imposed under the federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq).

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Driving Records

An employer may also review a job applicant’s full driving record, provided that the applicant authorizes release and the employer attests that the information is necessary as a condition of employment or otherwise at the direction of the employer (see RCW 46.52.130(2)(b)).

The contents of the driving abstract must not include any information related to sealed juvenile records unless that information is required by federal law or regulation.

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Polygraph Tests

Both federal (Employee Polygraph Protection Act of 1988, 29 U.S.C. § 2001 et seq.) and state law (RCW 49.44.120) limit the use of polygraph tests in the employment context; the federal law, however, does not apply to public employers, whereas the state law does.

State law makes it unlawful for the state or a political subdivision of the state "to require, directly or indirectly, that any employee or prospective employee take or be subjected to any lie detector or similar test as a condition of employment or continued employment."

There are several exceptions to the prohibition:

• Persons making an initial application for employment with a law enforcement agency or county juvenile court services agency, or returning after a break of more than 24 consecutive months as a fully commissioned law enforcement officer,
• Persons who manufacture, distribute, or dispense controlled substances, and
• Persons in sensitive positions directly involving national security.

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Medical, Drug, and Non-Medical Testing

Under the Americans with Disabilities Act (ADA), pre-employment medical examinations may not be given (29 C.F.R. § 1630.13), with one important exception: an examination can be required after a conditional offer of employment has been made, provided everyone in the same job category is required to take an exam, not just people who may have a disability (29 C.F.R. § 1630.14(b)).

Drug testing is not a medical examination under the ADA, and thus may be required at the time of application, assuming there is a public safety or other compelling justification for the test. See Robinson v. Seattle (2000). However, effective January 1, 2024, RCW 49.44.240 prohibits pre-employment drug testing for cannabis (a legal substance in Washington State), except for in the following instances:

• The new law does not apply to: (1) fire department and law enforcement personnel; (2) first responders; and (3) safety sensitive positions for which impairment while working presents a substantial risk of death (these safety sensitive positions must be identified by the employer prior to the applicant’s application for employment).
• If a state or federal law requires an applicant to be tested for cannabis, then the state or federal law controls.
• If the local government is receiving federal funding or federal licensing-related benefits or has entered into a federal contract, then the local government must abide by any federal drug testing requirements (including testing for cannabis) included in the funding agreement or contract for relevant employees.

If an agency does require an applicant be tested for a spectrum of controlled substances, which includes cannabis, the cannabis results cannot be provided to the agency.

Other non-medical tests, such as for physical fitness, may be allowed, provided they are to measure an attribute of the applicants that is job-related.

For information regarding civil service examinations, see our page on Civil Service.

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Retention and Disclosure of Pre-Employment Records

Local governments are required to retain recruitment records for three years after the position is filled or the recruitment effort is terminated (Local Government Common Records Retention Schedule, DAN GS50-04B-22). This includes (but is not limited to) job announcements/postings, interview questions, screening and selection criteria, and the applications, resumes, test results, and background checks of all unsuccessful job applicants (including applicants who were screened but not interviewed).

However, hiring records for successful job applicants who are hired by the agency – including the position description, application, resume, eligibility certifications, transcripts, letters of recommendation, final results of background checks or tests, etc. – must be retained for six years after the employee’s separation from the agency and the records are no longer needed for agency business (Local Government Common Records Retention Schedule, DAN GS50-04B-06).

Although local governments must retain this information for a specified time, all applications for public employment, other than for vacancies in elective office, are exempt from public disclosure under RCW 42.56.250(1)(b). This includes the names of applicants, resumes, and other related materials submitted with respect to an applicant, as well as any pre-employment background checks or polygraph tests required as part of the hiring process (see Sheats v. East Wenatchee (2018)).

While the applicants’ names and submitted materials are exempt from disclosure, it is not clear whether interview notes or reference check notes recorded by the agency’s staff members are exempt. (For more information, see our Public Records Act FAQs: Are interview notes or reference check notes exempt?).

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Recommended Resources

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