Election Law / Legislative News – Page 2

Texas Governor Signs ‘Make Texas Healthy Again’ Bill Mandating Food Warning Labels

On June 22, 2025, Texas Governor Greg Abbott signed SB 25 into law to require on-pack warning labels for food and beverage products that contain any of the substances listed within the bill, including titanium dioxide and FDA approved food colors such as Red 40. As we previously reported, the Texas House passed SB 25 on May 26, 2025, with bipartisan support and backing from the Department of Health & Human Services Secretary Robert F. Kennedy, Jr.
The law adds Sections 431.0815, 431.0816, and 431.0817 to Subchapter D, Chapter 431 of the Texas Health and Safety Code. The law requires companies to either remove or place a warning label “in a prominent and reasonably visible location” on any product that contains any of the 44 listed substances. The warning label must read: “WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United Kingdom.” This requirement applies to food product labels “developed or copyrighted” on or after January 1, 2027. In addition to seeking an injunction, the Attorney General may impose a civil penalty of up to $50,000 per day for each individual food product that violates this requirement.
Notably, Section 431.0815 states that a warning label must disclose the use of any of the listed substances “if the [FDA] requires the ingredient to be named on a food label and the ingredient is used in a product intended for human consumption.” This language was included following an amendment made by Representative Lacey Hull on May 25, 2025.
The law will take effect on September 1, 2025. Although the law is specific to products sold in Texas, it is expected to create widespread implications for the food and beverage industry.

FDA Opens Public Comment Period for Chemical Post-Market Assessment Regulation

On June 18, 2025, FDA announced its proposed “method for post-market assessments of chemicals in the food supply.” This “Post-market Assessment Prioritization Tool” will give chemicals an overall score that will be used to rank each post-market chemical assessment in order of priority. We previously reported on FDA’s proposed systematic process for post-market assessment of chemicals in foods, which had its comment period extended to January 21, 2025.
According to FDA’s proposed method, a chemical’s overall score will be calculated from a Multi-Criteria Decision Analysis (MCDA) which will use four Public Health Criteria and three Other Decisional Criteria. The Public Health Criteria are toxicity, change in exposure, effects on a susceptible subpopulation (e.g., children), and availability of new scientific information. The Other Decisional Criteria are external stakeholder attention, other government decisions, and public confidence in the U.S. food supply.
The total score of the Public Health Criteria is given equal weight to that of the Other Decision Criteria, as they both get a score of 1-9 and then the two are averaged to calculate the chemical’s overall score. FDA’s press release points to how the Environmental Protection Agency (EPA) similarly prioritizes certain substances for risk evaluation, though notably the EPA criteria are already specified in the Toxic Substances Control Act (TSCA) § 2605(b)(1)(B) and are “without consideration of costs or other nonrisk factors.”
The proposed prioritization method will be open to public comments until July 18, 2025 under Docket No. FDA-2025-N-1733. In a departure from past practice, there is no Federal Register notice announcing the establishment of this docket for receipt of public comments, only a link in FDA’s announcement to the docket on www.regulations.gov. By way of contrast, see FDA’s August 2024 Federal Register notice announcing a public meeting and soliciting public comment on FDA’s Post-Market Assessment of Chemicals in Food (89 Fed. Reg. 65633, Aug. 12, 2024).

Alcohol Consumption Limit Expected to be Removed from Dietary Guidelines

Sources have reported to Reuters that the U.S. government intends to remove its recommendation within the Dietary Guidelines for Americans (DGA) that adults limit alcohol consumption to one or two drinks per day. Instead, the DGA, 2025-2030 are expected to include a generalized 1-2 sentence statement that encourages Americans to drink in moderation or limit alcohol intake.
The DGA are updated every five years by the US Department of Agriculture (USDA) and the US Department of Health and Human Services (HHS). The Guidelines have advised drinking no more than one to two drinks per day since 1990. The guidelines are still under development and subject to change, so it is unclear what effect the finalized recommendations will have on the alcoholic beverage industry.
Science Over Bias, a coalition of beer, wine, and spirits interests, released a statement to Reuters and other media members saying the Dietary Guidelines for Americans has not yet been published and should be based on “sound scientific evidence” and “free from bias.”

The State of Employment Law: More Than Half of U.S. States Now Have a CROWN Law

While many of these posts focus on a single state or small group of states, this post focuses on a movement that has now spread to a majority of states. Efforts have been in place for years to introduce legal protections related to hairstyles commonly worn by Black individuals and other people of color. A group of advocacy organizations has lobbied both the federal government and state governments across the country to pass CROWN (Create a Respectful and Open Workplace for Natural Hair) laws.
California was the first state to pass such a law in 2019, and as of late 2024, 27 states and the District of Columbia had passed such laws. Passage of CROWN laws does not necessarily depend on a state’s political leanings. While states such as California, Illinois, and New York have unsurprisingly passed such laws, states such as Alaska, Arkansas, and Tennessee have CROWN laws in effect as well, and CROWN legislation has been introduced in several states where such laws are not yet in effect.
As an example of such a law, Illinois’ CROWN Act, which was enacted on January 1, 2023, expanded the Illinois Human Rights Act’s definition of race to include “traits associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.” While the federal government currently has not passed a CROWN law, the EEOC has previously issued guidance stating that adverse action against an employee because of hair texture may constitute evidence of race discrimination.
Even though not all states currently have CROWN laws, such laws are being enacted quickly and likely will soon be in place in most of the country. Employers should review their dress code and appearance policies to ensure that they do not prohibit hairstyles historically associated with race.

California Delays NOP Requirements for Compostable Products

Earlier this month, the California Department of Resources Recycling and Recovery (CalRecycle) sent a letter to the Biodegradable Products Institute (BPI) that effectively delays, until June 30, 2027, a key requirement for “compostable” and “home compostable” products set to take effect next year. California’s AB 1201 required that after January 1, 2026, products labeled “compostable” or “home compostable” must not only pass tests specified under the law but must also be “an allowable agricultural organic input under the requirements of the United States Department of Agriculture [(USDA)] National Organic Program [(NOP)].” Although this requirement applies to any material that meets AB 1201’s broad definition of a “product,” the law principally affects plastic and plastic-coated products. To assure that products meeting California’s current compostability standards can continue to be labeled “compostable” or “home compostable” in California, BPI submitted a petition in 2023 to the National Organic Standards Board (NOSB) seeking recognition for compostable plastic and plastic-coated products under the USDA NOP. That petition is still pending. CalRecycle’s letter to BPI grants an extension for “products that contain synthetic substances that otherwise satisfy all requirements for lawfully being labeled ‘compostable,’ including the requirement that products meet an ASTM standard specification pursuant to section 42357(a)(1). This extension shall expire as of June 30, 2027.” Absent this action, many companies would have had to remove current “compostable” labels for their products at a time when other laws – notably SB 54, California’s Extended Producer Responsibility (EPR) law for packaging – require that products meet source reduction, recyclability, or compostability requirements by specific deadlines.
CalRecycle’s extension allows plastic and plastic-coated products that currently meet all requirements for being labeled “compostable” or “home compostable” in California, save for formal recognition by the USDA NOP, to continue to be sold in that state without changes to labels until June 30, 2027. After that date, companies must revise labeling for their “compostable” and “home compostable” products sold in California that are not listed as an allowable agricultural organic input under the requirements of the USDA NOP, unless CalRecycle grants a further exemption. On this point, CalRecycle explained that before June 30, 2027:
CalRecycle will evaluate whether to renew exemptions for products that would become compliant with PRC section 42357(g)(1)(B) pursuant to regulations then under consideration. CalRecycle may determine regulations to be under consideration if there is a pending NOSB rulemaking recommendation to the NOP, the NOP has decided to initiate rulemaking but has not yet done so, or the rulemaking process is underway. A renewed extension shall continue while such regulations remain under consideration but shall not extend beyond January 1, 2031.
CalRecycle’s action is good news for companies selling covered compostable products in California. However, the compostability legal landscape remains fractured, with some different – and inconsistent – state laws. Although other states have not adopted California’s added NOP obligations, states like Washington, Colorado, and others have their own restrictions for labeling and marking “compostable” products. CalRecycle’s 18-month extension is a positive step for many companies who have invested in compostable and home compostable products. Nevertheless, businesses offering compostable packaging and products nationally must be familiar with all applicable compostability requirements in developing their labeling and marketing materials.

From Wall Street to Main Street: Investor Advocate Puts Private Funds on the 401(k) Horizon

On June 25, 2025, the SEC’s Office of the Investor Advocate (OIAD) released its annual report to Congress on its policy priorities for fiscal year 2026. The office was established by Congress to focus on retail investor issues and, in many years, its annual report draws limited attention. This year’s report is notable because it places the inclusion of private equity, private credit and other alternative strategies in retirement savings plans (such as 401(k) plans) on its short list of 2026 policy priorities. If retail investors are given greater latitude to invest in private funds through their retirement plans, they could become a significant new source of capital for private fund managers.
Although OIAD does not write rules, its work reflects the Commission’s agenda and shapes the final outputs. Its staff conducts research that can inform how the Commission designs rules, for example, by providing evidence of investor preferences to regarding particular asset classes and their level of understanding of common investment structures. This information could, in turn, be used to design any guardrails the SEC may impose or to support the cost-benefit analysis the SEC is required by statute to conduct.[1]
OIAD’s focus does not guarantee imminent rulemaking; however, history shows that themes highlighted in its reports frequently reappear elsewhere on the SEC’s agenda. The inclusion of private market issues in OIAD’s report provides further confirmation, alongside other recent changes at the SEC and elsewhere,[2] such as abandoning the previous informal limitation on closed-end funds’ investments in private funds as well as recent statements from the SEC Commissioners and staff, that easing the path for retail investors to invest in alternative assets through their retirement savings plans is one step closer to becoming a reality.[3]

[1] The economic analysis section of a rulemaking release is frequently nearly the same length as the legal section. SEC rules have been regularly overturned on the basis of flaws in the economic analysis, as opposed to the legal analysis. By taking the extra time to assemble strong economic evidence in advance of a rulemaking action, the SEC could help to create a rule that will survive legal challenge.
[2] For example, the United States House of Representatives recently passed a bill that would expand the definition of accredited investor to include additional categories of professional certification, which could expand the universe of eligible investors in private funds. Similar bills have been passed before only to languish in the Senate, but the near-unanimous approvals by of the House’s bills may indicate a broadly bipartisan coalition is developing in favor of increased access to private investments.
[3] Rule changes at the SEC are not the only actions that must take place before retirement plan investments in private funds become widespread. This would likely also require action by the Department of Labor (which, reportedly, could be the subject of a future executive order) as well as decisions by individual plan fiduciaries to add funds to their platforms. While the SEC’s actions alone will not change the environment for private fund managers, they represent an important step along the path.

Florida Closes the Door on “Quiet Hour” Email Claims Under the FCCPA

Over the past few years, we’ve seen a wave of consumer lawsuits filed under Florida’s Consumer Collection Practices Act (FCCPA), many of them alleging violations of the law’s “quiet hours” provision based solely on the timing of emails. That legal loophole has now been closed.
The End of FCCPA “Quiet Hour” Email Claims
On May 16, 2025, Governor Ron DeSantis signed Senate Bill 232 (SB 232) into law. The amendment to Fla. Stat. § 559.72(17) clarifies that the quiet hours rule — which prohibits communications between 9:00 p.m. and 8:00 a.m. — does not apply to emails.
This change is significant. Previously, the statute didn’t specify which types of communications were covered. Plaintiffs seized on that ambiguity, arguing that emails sent during quiet hours violated the statute. Hundreds of suits followed, with many styled as putative class actions.
Conflicting Court Rulings
The Florida courts were split on the issue. Some judges agreed that the quiet hours rule applied only to calls, reasoning that emails are passive, like postal mail. Others accepted the broader interpretation, citing the FCCPA’s general definition of “communication” and drawing comparisons to the FDCPA’s federal counterpart, which arguably covers after-hours emails.
That uncertainty — and the litigation risk that came with it — prompted the Florida Legislature to act.
What SB 232 Actually Says
SB 232 adds the following clarifying language to § 559.72(17): “This subsection does not apply to an e-mail communication that is sent to an e-mail address and that otherwise complies with this section.” In its commentary, the Legislature noted that the original statute was adopted before email became widely used and noted that emails are “less invasive and less disruptive than telephone calls.”
What About the FDCPA?
The federal Fair Debt Collection Practices Act does contain a similar quiet hours provision (15 U.S.C. § 1692c), and the CFPB has suggested it could apply to emails. However, the FDCPA is narrower in scope than the FCCPA, as it applies only to third-party debt collectors, lacks punitive damages, and has a shorter statute of limitations. In short, a similar wave of email-based claims under the FDCPA is unlikely.
Final Thoughts
SB 232 cuts off a major line of exposure for creditors and original lenders who’ve been targeted under the FCCPA for sending after-hours emails. While the retroactivity of the law remains an open question, this amendment is a welcome development for any business communicating with Florida consumers.
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Pay Equity Expands in Ohio: Cleveland Passes Ordinance

In April 2025, the City of Cleveland approved Ordinance No. 104-2025 (the “Ordinance”), which will impose a salary history ban and create a pay disclosure requirement for employers starting Monday, October 27, 2025.
The latter provision – the first in the Buckeye State to require affirmative disclosure of wages or salary ranges for advertised positions – distinguishes this Ordinance from pay equity laws already enacted in other Ohio municipalities. The new pay equity measures will apply to the City of Cleveland and private employers with at least 15 employees working within Cleveland, including job placement and referral agencies working on behalf of another employer. We discuss both requirements below.
Salary History Ban
Like similar laws in Cincinnati, Columbus, and Toledo, the Ordinance broadly prohibits covered employers from:

Asking about an applicant’s current or prior salary, including wages, commissions, hourly earnings, and any other monetary earnings, as well as benefits (collectively, their “salary history”);
Screening applicants based on their salary history (including requiring an applicant’s former salaries to meet a threshold);
Relying solely on an applicant’s salary history when deciding whether to make an offer of employment or determining their compensation; and
Refusing to hire or otherwise retaliating against an applicant for not disclosing their salary history.

The new salary history protections do not apply to independent contractors, but otherwise cover most individuals applying for full-time, part-time, temporary, seasonal, contracted, and commissioned roles that will be performed for a covered employer in Cleveland, regardless of whether the person is interviewed for the role. However, the ban does not apply:

when federal, state, or local law specifically authorizes using salary history to determine compensation;
to internal transfers or promotions;
to salary history disclosures made by an applicant, if voluntary and unprompted;
to re-hires, where prior pay history is already known;
when pay rates are established through collective bargaining; or
to governmental employers other than the City of Cleveland.

The Ordinance also carves out an exception for information inadvertently obtained through a background check, as long as such information is not “solely relied upon” to determine an applicant’s salary.
Additionally, covered employers are free to ask about the applicant’s salary expectations and any objective measures of the applicant’s prior productivity, including revenues, sales, or other production reports. Employers may also ask applicants whether they would forfeit any unvested equity or deferred compensation if they resign from their current job.
Pay Disclosure Mandate
The Ordinance also requires covered employers to disclose the salary range or scale when advertising most job openings. The disclosure must include any compensation the successful candidate will receive, including wages, commissions, hourly earnings, and other monetary earnings, as well as benefits. Notably, the Ordinance does not specify any limits for determining the breadth of the salary range.
The pay disclosure requirements apply to any notice, advertisement, or formal job posting for roles that will be performed in Cleveland, except for postings related to independent contractors, internal transfers or promotions, or a position where the salary is determined by collective bargaining procedures. And like the salary history ban, the pay disclosure mandate exempts governmental employers other than the City of Cleveland.
Enforcement Provisions, Including an Opportunity to Cure
The Ordinance permits any person (including non-employees) to file a written complaint against a covered employer with Cleveland’s Fair Employment Wage Board (FEWB) within 180 days of an alleged violation. If the FEWB determines by a preponderance of the evidence that the employer has violated the Ordinance, the Board will notify the employer and attempt to resolve the complaint “by education, conference, conciliation, and persuasion with all interested parties.”
An employer will face no penalty if, within 90 days of being notified of the complaint, the employer corrects its practices and provides the FEWB with a plan to adhere to the Ordinance. However, an employer that does not remedy its practices within the 90-day deadline may face civil penalties up to $1,000, $2,500, or $5,000, depending on whether it had prior violations within the last five years. The FEWB will adjust the amount of the civil penalties annually by February 1 in connection with changes to the consumer price index.
Potential for State Pushback
While several Ohio cities have a history of enacting their own labor and employment laws, the State of Ohio does not always welcome these measures. For example, Cleveland sought to raise its minimum wage to $15/hour in 2016, but before residents could vote on the proposal, the state legislature passed a law prohibiting municipalities from setting their own minimum wages. Although the state has not reacted to Columbus, Cincinnati, or Toledo’s pay equity measures to date, the broad requirements of the Cleveland ordinance could push the Ohio legislature to intervene. We will watch for any developments related to this Ordinance and similar local laws.
In the meantime, covered employers should watch for any further guidance and start to evaluate their job advertisements, employment applications, and other hiring and salary determination processes to ensure compliance with the City’s pay equity measures before they take effect this October.

Texas SB 1318 Tightens Physician Non-Compete Rules, Extends Restrictions to Other Healthcare Practitioners

Takeaways

More stringent requirements for physician non-compete agreements, including a five-mile geographic limit and a one-year duration cap, will take effect 09.01.25.
Non-compete buyouts for physicians are capped at the physician’s total annual salary and wages at termination.
New restrictions apply to non-compete agreements with dentists, nurses, and physician assistants.

New Restrictions on Non-Compete Agreements Coming to Colorado

Colorado generally prohibits restrictive covenants, except in narrow circumstances. On May 8, 2025, the Colorado Legislature passed Senate Bill 25-083, which imposes three significant new limitations on the use of restrictive covenants for certain healthcare providers and narrows their application in business sales. These changes will apply to agreements entered into or renewed on or after August 6, 2025.
Current Law Overview
Under current law (C.R.S. § 8-2-113), non-compete and customer non-solicitation agreements are enforceable only in certain circumstances. For instance, non-competes are enforceable for “highly compensated individuals” when the agreement is reasonably necessary to protect an employer’s trade secrets. However, covenants that restrict a physician’s right to practice medicine after leaving an employer are already void under Colorado law.
Key Changes Under SB25-083 Broader Ban on Non-Competes for Healthcare Providers
The amendment prohibits non-compete and non-solicitation agreements for certain licensed healthcare providers, even if they meet the “highly compensated” threshold. This includes those who:

Practice medicine or dentistry
Engage in advanced practice registered nursing
Are certified midwives
Fall under additional categories listed in C.R.S. § 12-240-113

Liquidated Damages in Physician Contracts
Previously, physician employment agreements could include liquidated damages tied to termination or competition. This amendment removes that provision, meaning that:

Agreements with unlawful restrictive covenants are unenforceable.
Agreements without unlawful provisions remain enforceable and may still carry damages or equitable remedies.
It remains unclear whether competition-related liquidated damages are still enforceable under the new law.

Expanded Patient Communication Rights
Medical providers can no longer be restricted from informing patients about:

Their continued medical practice
New professional contact information
The patient’s right to choose their healthcare provider

Confidentiality and trade secret agreements are still allowed, as long as they don’t prevent sharing general knowledge.
New Limitations on Business Sale Non-Competes
Colorado law has long permitted non-competes in connection with the purchase or sale of a business. SB25-083 narrows this by:

Allowing non-competes only for owners of a business interest
Placing time limits on non-competes for minority owners or those who received ownership through equity compensation

For these individuals, the non-compete duration is capped using a formula: Total consideration received ÷ Average annual cash compensation in the prior two years, or the duration of employment if less than two years.

Washington Overhauls Employment Laws on Reductions in Force and Background Checks

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:

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.
The mass layoff or business closure is caused by circumstances not reasonably foreseeable at the time notice is required.
The mass layoff or business closure is caused by a natural disaster; or
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:

have a negative impact on the employee’s or applicant’s fitness or ability to perform the position sought or held, or
harm or cause injury to people, property, business reputation, or business assets, and the employer has considered and documented certain factors, including:

the seriousness of the conduct underlying the conviction,
the number and types of convictions,
the time that has elapsed since the conviction (excluding periods of incarceration),
specific duties of the position,
the place and manner in which the position will be performed (e.g., whether it is a public-facing role), and
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.

Recent Amendments to the Starter Home Revitalization Act

SB 684 and SB 1123 (Caballero) expand the Starter Home Revitalization Act to further facilitate the construction of “starter” home projects consisting of up to 10 dwelling units (not exceeding an average of 1,750 net habitable square feet) on up to 10 parcels. SB 684 provides for a streamlined ministerial (i.e., no CEQA) approval process for qualifying housing development projects in multifamily zoning districts, effective January 1, 2024. SB 1123 extends the same streamlined ministerial approval process to qualifying housing development projects on vacant lots in single-family zoning districts, effective July 1, 2025.

STREAMLINED MINISTERIAL APPROVAL PROCESS
The Starter Home Revitalization Act requires ministerial and expedited approval of qualifying housing development projects. The Act provides:

The local agency must ministerially consider an application for a qualifying housing development project, including the parcel map or tentative and final map, without discretionary review or a hearing. This means that the project will not be subject to environmental review under CEQA or administrative appeal.
The local agency must approve or deny an application for a qualifying housing development project and the associated parcel map or a tentative map within 60 days of receipt of a “completed” application. If it makes no decision within that time limit, the project will be deemed approved as a matter of law.
The local agency may only disapprove a qualifying housing development project, including the parcel map or tentative and final map, if it makes a written finding, based on the preponderance of the evidence, that the project would have a specific adverse impact, as defined in Gov. Code § 65589.5(d)(2), upon the public health and safety for which there is no feasible method to satisfactorily mitigate or avoid the specific adverse, impact. This creates a high threshold for the local agency.
Except as specified below (minimum parcel square footage), the local agency cannot impose minimum requirements on the size, width, depth, or dimensions of an individual parcel created by a qualifying housing development project. As of July 1, 2025 (the effective date of SB 1123), the local agency also cannot impose minimum parcel frontage requirements.
The proposed subdivision must conform to all applicable objective requirements of the Subdivision Map Act. The local agency may also impose local objective zoning, subdivision and design standards during the project approval process but cannot: (i) require setbacks between the units, except as required under the California Building Code; (ii) require side and rear setbacks greater than four feet from the original lot line (no setback shall be required for an existing structure or replacement structure in the same location, as specified); (iii) impose a FAR limit of less than 1.25 (for projects with 8-10 units) or less than 1.0 (for projects with 3 to 7 units); (iv) impose certain parking requirements (as specified); or (v) impose requirements that only apply to Starter Home Revitalization Act projects.
The imposition of local objective zoning, subdivision and design standards also cannot physically preclude the development of a qualifying housing development project built to the densities specified in Gov. Code § 65583.2(c)(3)(B) (e.g., at least 30 dwelling units per acre for a jurisdiction in a metropolitan county and at least 20 dwelling units per acre for a suburban jurisdiction). There is one exception to this rule, which pertains to the maximum building height for qualifying housing development projects in single-family zoning districts (see below). This provision should make it more challenging for local agencies to impose local standards.
The local agency must approve the building permit for an approved housing development project before the final subdivision map has been recorded, meaning that construction can begin even though the official subdivision process is not yet fully complete. However, a certificate of occupancy will not be issued until the final map is recorded.

Assembly Bill (AB) 2234 separately requires local agencies to process post-entitlement phase permit applications, including but not limited to building permit applications, for housing development projects within specified timeframes. The local agency must determine whether an application for a post-entitlement phase permit application is complete within 15 days of receiving the application. For housing development projects with 25 or fewer units, the local agency must complete its review within 30 business days after the application is deemed complete and either: (i) provide a full set of comments with a comprehensive request for revisions; or (ii) approve the permit application within that timeframe (subject to specified exceptions).
AB 2234 provides that any failure to meet the foregoing deadlines is a violation of the Housing Accountability Act (Gov. Code § 65589.5) (HAA).
The local agency may condition issuance of the building permit on the project applicant fulfilling certain requirements, such as a guarantee that a final map will be recorded or the provision of security for the fulfillment of conditions of approval and construction of any necessary infrastructure improvements.

QUALIFYING PROJECTS: THRESHOLD REQUIREMENTS
The following threshold requirements must be met for a housing development project to qualify for streamlined ministerial approval under the Starter Home Revitalization Act. Additional requirements vary depending on whether the project is proposed in a multifamily zoning district or a single-family zoning district (see below).

The project cannot propose more than 10 dwelling units on more than 10 lots. As of July 1, 2025 (the effective date of SB 1123), the local agency may choose (but is not required) to also permit accessory dwelling units or junior accessory dwelling units, which would not count toward the 10-unit maximum. See also Senate Bill (SB) 1211 (Skinner), which expands opportunities for building ADUs.
Minimum density requirements must be met:

If the lot proposed to be subdivided is identified in the local jurisdiction’s legally compliant housing element, the project must result in at least as many dwelling units projected for the parcel in the housing element and must include any low- or very low-income housing units assumed for the parcel to meet the local jurisdiction’s regional housing needs allocation (RHNA), as specified in the housing element. This is consistent with the “no net loss” rule under state law.
If the lot proposed to be subdivided is not identified in the housing element, or the housing element is non-compliant, the project must result in at least as many dwelling units as the maximum allowable residential density under local zoning. As of July 1, 2025 (the effective date of SB 1123), under this scenario, the project must result in the greater of: (i) at least 66% of the maximum allowable residential density under local zoning; or (ii) at least 66% of the applicable residential density specified in Gov. Code § 65583.2(c)(3)(B) (e.g., at least 19.8 dwelling units per acre for a jurisdiction in a metropolitan county and at least 13.2 dwelling units per acre for a suburban jurisdiction).

It is unclear how these minimum density requirements are intended to be reconciled with the 10-unit maximum under the law. To illustrate, if the single-family zoned lot proposed to be subdivided is 1.5 acres (the maximum), is not identified in the housing element, and is located in a metropolitan county, the minimum residential density requirements above would require a total of at least 30 dwelling units (rounded up), which exceeds the 10-unit maximum.

The lot proposed to be subdivided must be a legal parcel located within an incorporated city, urbanized area or urban cluster (as defined) and must be served by public water and municipal sewer systems.
The lot proposed to be subdivided must be substantially surrounded by qualified urban uses, which include residential, commercial, retail, public institutional, and transit or transportation passenger facility. The term “substantially surrounded” means that “at least 75% of the perimeter of the project site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses” and “[t]he remainder of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that have been designated for qualified urban uses in a zoning, community plan, or general plan for which an environmental impact report was certified.”
The new dwelling units cannot exceed an average of 1,750 net habitable square feet. SB 1123 (effective July 1, 2025) newly defines “net habitable square feet.”
The dwelling units may be constructed on fee simple ownership lots, as part of a common interest development, as part of a housing cooperative (as defined), or on land owned by a community land trust (as defined). As of July 1, 2025 (the effective date of SB 1123), a tenancy in common may also be proposed. A homeowners’ association is not required unless otherwise required under the Davis-Stirling Common Interest Development Act.
As of July 1, 2025 (the effective date of SB 1123), the proposed subdivision cannot result in any existing dwelling unit being alienable separate from the title to any other existing dwelling unit on the lot.
The lot proposed to be subdivided cannot have been previously subdivided pursuant to SB 9 or the Starter Home Revitalization Act.
The lot proposed to be subdivided cannot be subject to specified environmental conditions including habitat for protected species, wetlands, high or very high fire hazard severity zone, hazardous waste site, delineated earthquake fault zone, special flood hazard area, regulatory floodway, land dedicated for conservation in an adopted natural community conservation plan, or conservation easement (as defined and specified and subject to certain exceptions).

This criteria is similar to, but not exactly the same as, the SB 35 siting criteria under Gov. Code § 65913.4(a)(6). For example, the Starter Home Revitalization Act does not include an exception to the fire hazard severity zone prohibition where specified fire hazard mitigation measures have been adopted.

Any applicable local inclusionary affordable housing requirements must be met.

QUALIFYING PROJECTS: MULTIFAMILY ZONING DISTRICTS
In addition to the threshold requirements above, the following requirements must be met for a housing development project in a mixed-family zoning district to qualify for streamlined ministerial approval under the Starter Home Revitalization Act:

The lot proposed to be subdivided must be zoned for multifamily residential development and cannot exceed five acres.
The newly created parcels must be at least 600 square feet (unless the local agency has adopted a smaller minimum parcel size for Starter Home Revitalization Act projects).
The project cannot require the demolition or alteration of specified types of protected units including: (i) designated affordable housing (as specified); (ii) rent or sales-price controlled housing (as specified); (iii) housing occupied by tenants within five years preceding the date of the application, even if that housing has since been demolished or is no longer occupied by tenants; or (iv) housing where the tenants were evicted under the Ellis Act, which was exercised by the owner within 15 years preceding the date of the application. There is currently no natural disaster exception.

QUALIFYING PROJECTS: SINGLE-FAMILY ZONING DISTRICTS
In addition to the threshold requirements above, the following requirements must be met for a housing development project in a single-family zoning district to qualify for streamlined ministerial approval under the Starter Home Revitalization Act. Please recall that these provisions will not be operative until July 1, 2025 (the effective date of SB 1123).

The lot proposed to be subdivided must be zoned for single-family residential development and cannot exceed one and a half acres.
The lot proposed to be subdivided must be vacant, which is defined as “having no permanent structure, unless the permanent structure is abandoned and uninhabitable.” The following housing types cannot be considered “vacant”: (i) designated affordable housing (as specified); (ii) rent or sales-price controlled housing (as specified); or (iii) housing occupied by tenants within five years preceding the date of the application, even if that housing has since been demolished or is no longer occupied by tenants. There is currently no natural disaster exception.
The newly created parcels must be at least 1,200 square feet (unless the local agency has adopted a smaller minimum parcel size for Starter Home Revitalization Act projects).
The project must comply with any height limit imposed by the local agency, but that height limit cannot be less than the height allowed pursuant to the existing zoning designation applicable to the lot. Please note that this height limit may be imposed even if it would physically preclude the development of the project.

IMPLICATIONS
We expect to see a flurry of development activity under SB 1123 once that law is effective on July 1, 2025. The streamlined ministerial approval process, which must be completed within 60 days, is highly advantageous for housing developers and should result in higher density housing development projects on underutilized properties throughout the State of California. The key will be identifying qualifying properties, particularly vacant properties in single-family zoning districts.