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"Ban the Box"
Oregon’s “ban the box” law makes it unlawful for an employer to inquire about criminal convictions before the interview stage of hiring. ORS 659A.360. 

Named for the criminal convictions check box found on many employment applications, “ban the box” legislation targets a range of hiring practices that tend to create barriers to employment for ex-offenders and have a disparate impact on applicants of protected classes, such as race and national origin.

In addition to the state law enacted in 2016, a local City of Portland “ban the box” ordinance (Portland City Code Chapter 23.10) requires Portland employers to wait until a conditional job offer has been made before inquiring about criminal histories. 

Below are some frequently asked questions about the requirements.

Q: What employers are covered under these laws?
 
A: Oregon’s “ban the box” law covers all Oregon employers. 

The Portland ordinance covers any employer with six or more employees when they employ someone for a position being performed a majority of the time within Portland. (The Portland ordinance does not include the United States Government; the State of Oregon and any office, department, agency, authority, institution, association, society or other body of the state, including the legislature and the judiciary; any political subdivision of the state of Oregon or any county, city, district, authority, public corporation or public entity other than the City of Portland, or employers with fewer than six employees.)
 
Q: What counts as an unlawful employment practice?
 
A: Under Oregon’s “ban the box” statute, it is an unlawful practice for an employer to exclude an applicant from an initial interview solely because of a past criminal conviction. ORS 659A.360(1). That means an employer may not require an applicant to disclose a criminal conviction on a job application or prior to an initial interview. If the employer doesn’t conduct an interview, it may not require an applicant to disclose a criminal conviction prior to making a conditional job offer. Review generic employment application forms – especially those found online or at office supply stores – to make certain they do not include any question on criminal history. With a few narrow exceptions, employers may no longer ask questions about criminal convictions at the early stages of the hiring process.
 
Under the Portland ordinance, employers may not exclude an applicant from consideration for a job solely because of the applicant’s criminal history. Portland City Code Ch. 23.10.030. 

An employer may not lawfully access an applicant’s criminal history prior to making the conditional job offer. Even if an applicant self-discloses a conviction, the employer would need to disregard it until after making a conditional offer of employment. Apart from a few narrow exceptions (see below), employers may only consider an applicant’s criminal history after making a conditional offer of employment.

Q: Does this mean that employers are not allowed to do background checks anymore?
 
A: No, neither the state law or the Portland ordinance prevents employers from considering an applicant’s history of criminal convictions in making the final hiring decision. The “ban the box” requirements also do not prohibit employers from letting applicants know during recruitment that criminal background will be considered. Employers are still able to make a job offer contingent upon consideration of an applicant’s criminal record. 

Note that overreliance on background checks can create problems for employers. Many databases contain errors and do not reflect the ultimate disposition of the cases. A conviction may have been reversed on appeal or may have been entered into on a deferred judgment basis, meaning that the guilty plea is withdrawn and the charge is dismissed if certain terms of the plea agreement have been met. Many people have similar names and instances of mistaken identity are common. 

The Equal Employment Opportunity Commission (EEOC) has also issued guidance stating that use of criminal background checks in employment decisions may have a disparate impact based on protected classes, such as race and national origin. The EEOC guidance suggests employers used an individualized screen to determine whether excluding an applicant because of criminal history would be job-related and consistent with business necessity. Targeted screening should take into account 1) how recent the conviction is, 2) how severe it is, and 3) how it relates to the job. The process should also allow the applicant to explain the circumstances of a conviction. 

Remember that whenever you use consumer reports – such as third-party criminal background checks, credit checks or drivers’ license records – to make employment decisions you are required to follow the notification provisions of the federal Fair Credit Reporting Act. For more information, visit the Federal Trade Commission

Q: Do I have to hire candidates with criminal records?
 
A: Under state law, there is no requirement that an employer hire an individual with a conviction record. 

The Portland ordinance is likewise clear that it is not unlawful for an employer to rescind a conditional offer of employment based upon an applicant’s criminal history. Before an employer rescinds a job offer based on a specific conviction, however, the employer must first make a good faith determination that the decision is job related and consistent with business necessity. This requires that the employer conduct an individualized assessment (like that recommended by the EEOC) which considers:
  • The nature and gravity of the criminal offense;  
  • The time that has elapsed since the criminal offense took place; and
  • The nature of the employment held or sought.
In addition, an employer may not consider arrests not leading to a conviction, except where a crime is unresolved or charges are pending against an applicant; convictions that have been judicially voided or expunged; or charges that were resolved through the completion of a diversion or deferral of judgment program (unless the offense involved physical harm or attempted physical harm to a person).

An employer that rescinds a conditional offer of employment must notify the applicant in writing of its decision and identify the relevant criminal convictions on which it based the decision.
  
Q: Are there exceptions to these “ban the box” requirements?
 
A: The statewide provisions and Portland ordinance do not apply in the following circumstances: 
  • Federal, state or local law, including corresponding rules and regulations, requires the consideration of an applicant’s criminal history;
  • The employer is a law enforcement agency;
  • The employer is in the criminal justice system; or
  • An employer is seeking a nonemployee volunteer.
Under the Portland ordinance, an employer may also consider an applicant’s criminal history prior to a conditional offer of employment for positions that:
  • Involve direct access to children, seniors, persons with disabilities, mental illness, or alcohol or substance dependence; 
  • Present increased public safety concerns (as determined by administrative rule or business necessity);
  • Are designed to encourage employment of those with criminal histories (as designated by the employer as part of a federal, state or local government program); or
  • Involve one or more of the following:
    • Master key holders, including maintenance personnel
    • Tow truck operators (may access DMV driving record as well)
    • Drivers of goods, equipment, personal property and persons (may access DMV driving record as well)
    • Access to confidential and/or sensitive info (personnel, medical, discipline records, etc.)
    • Mandatory insurance bonding. 
For these positions, the Portland Ordinance also permits the use of its own screening matrix​ in place of an individualized assessment.

Applying these exceptions can be complicated; you may wish to contact a qualified employment law attorney for specific advice.

Revised June, 2019

DISCLAIMER 
Nothing on this website is intended as legal advice.  Any responses to specific questions are based on the facts as we understand them, and not intended to apply to any other situations.  This communication is not an agency order.  If you need legal advice, please consult an attorney.  We attempt to update the information on this website as soon as practicable following changes or developments in the laws and rules affecting Oregon employers, but we make no warranties or representations, express or implied, about whether the information provided is current.  We urge you to check the applicable statutes and administrative rules yourself and to consult with legal counsel prior to taking action that may invoke employee rights or employer responsibilities or omitting to act when required by law to act.
 
TECHNICAL ASSISTANCE FOR EMPLOYERS
800 NE OREGON STREET, STE 1045
PORTLAND, OR  97232
971-673-0824
 
 
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