Search form

Oregon ‘Ban the Box’ Legislation Effective, Next is Even Tougher Portland Ordinance

  • January 6, 2016

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.

State Law

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:

  1. to disclose on an employment application a criminal conviction;
  2. to disclose, prior to an initial interview, a criminal conviction; or
  3. 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.

Portland Law

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.

Next Steps

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. Jackson Lewis attorneys are available to assist in such efforts.

©2016 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

See AllRelated Articles You May Like

May 31, 2018

Connecticut Bans Inquiries into Applicants’ Wage and Salary History

May 31, 2018

Connecticut is the latest state to prohibit employers from asking prospective employees about past compensation. Effective January 1, 2019, employers may not ask (directly or through a third party) about a prospective employee’s wage and salary history unless the prospective employee volunteers the information. According to Governor... Read More

May 15, 2018

Vermont Bans Inquiries into Job Applicants’ Salary and Benefit History

May 15, 2018

Beginning July 1, 2018, employers in Vermont will be prohibited from requiring a prospective employee to disclose his or her salary and benefit history under legislation (H.B. 294) signed by Governor Phil Scott on May 11, 2018. The new law also bars employers from seeking an applicant’s salary history without his or her authorization... Read More

May 11, 2018

Georgia Targets Elder Abuse with Tough New Long-Term Care Background Check Law

May 11, 2018

A new Georgia law will require nursing home and other long-term care workers to submit to extensive background checks. The “Georgia Long-Term Care Background Check Program” will take effect on October 1, 2019. Georgia joins the majority of other states mandating enhanced satisfactory background check for care workers. The new law,... Read More