Oregon law restricting employers from inquiring about a job applicant’s criminal background during the initial stages of the application process (i.e., before a job interview) went into effect on January 1, 2016. Beginning July 1, 2016, the City of Portland will take ban-the-box restrictions a few steps further, with its own ordinance.
The Oregon “Ban the Box” law applies to all employers, unless they are exempt from the new law. Exempt employers include:
- Those who are required by federal, state, or local law to consider an applicant’s criminal history;
- Those who are law enforcement agencies;
- Those in the criminal justice system (not defined by this law); and
- Those seeking a nonemployee volunteer.
This legislation prohibits an employer from requiring an applicant:
- to disclose on an employment application a criminal conviction;
- to disclose, prior to an initial interview, a criminal conviction; or
- if no interview is conducted, to disclose, prior to a conditional offer of employment, a criminal conviction.
The state legislation does not prohibit employers from notifying applicants that they will later be required to disclose convictions or that a criminal background check will be performed as part of the hiring process. It expressly states that it does not foreclose an employer from considering convictions when making hiring decisions.
The legislation, moreover, does not provide for a private right of action against a covered employer, which was provided for in a prior version of the bill. Rather, the applicant may file an administrative charge with the Oregon Bureau of Labor and Industries.
Under the Portland ordinance, not only will covered businesses (those with at least six employees) be barred from including questions about criminal convictions on their job applications, but such questions cannot be asked during the job interview or at any point before a conditional job offer is made.
Employers cannot inquire about or even access an applicant’s criminal history from any other source before making a “conditional offer of employment.” A “conditional offer of employment” is defined as any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of the offer.
If an employer learns of an applicant’s criminal background after making the conditional job offer, the ordinance states that the employer can rescind the offer after determining that rejecting the applicant would be job-related and consistent with business necessity.
The ordinance requires the drafting of administrative rules. We will report further details and developments.
Employers should review their employment applications and their application processes, including interview guides, sample questions, and job postings, to ensure compliance with the Oregon legislation’s requirements. Further, employers should plan new processes for conducting criminal background procedures.