New restrictions on use of criminal background checks in hiring are now in place. The new law in Oregon and the ordinance recently passed by the Portland City Council both went into effect on January 1, 2016. In popular language the legislation is referred to as “ban the box” legislation, referring to the box in employment applications that an applicant must check as to whether or not they have had any criminal convictions. This post discusses both the new Oregon law and the new Portland City ordinance, which goes much further than the new Oregon law.
The Oregon Law
In Oregon, employers may not exclude an applicant from an initial interview based upon a criminal conviction. The applicant may not be required to disclose criminal convictions on an application or prior to such interview. If no interview is required, the employer may not require the applicant to disclose a criminal conviction prior to extending a conditional offer of employment. However, providing that the employer has complied with these restrictions, the employer is permitted to consider the applicant’s “conviction history” while making hiring decisions.
I have not seen anyone commenting on the issue yet, but I believe that a fair reading of the statute prohibits an employer from using non-conviction criminal history in making an employment decision. In other words, it is not a prudent practice to rely upon any unverified criminal background check, as those may have errors or reflect matters upon which there is no judgment of conviction in the court file, putting the employer into murky waters at best. The database background check services are infamous for containing inaccurate information. But certainly verified convictions may be considered by the employer.
Specifically excluded from the restrictions under the statute are the following circumstances:
- If federal, state or local law requires consideration of an applicant’s criminal history
- If the employer is a law enforcement agency;
- If the employer is in the criminal justice system; or
- If the employee is seeking a nonemployee volunteer
For employers, this change in the law means that applications have to be revised so that they do not contain any questions regarding criminal history. Further, interviewers should become familiar with the law. Finally, employers should consider their process in considering convictions, revise it if necessary, and ensure that they are only relying upon verified criminal convictions in making any employment decisions.
The Portland Ordinance
The Portland city ordinance applies to private employers with at least 6 employees and to the city itself. It pertains to employees performing the majority of their work within the Portland city limits. Under the ordinance an employer may not exclude an applicant from consideration from employment solely because of the applicant’s criminal history. The employer may not access the criminal history prior to making a conditional offer of employment. Up to this point, the city ordinance tracks the Oregon law.
However, under the city ordinance, the employer may rescind the conditional offer of employment only if the employer “determines in good faith that a specific offense or conduct is job related for the position in question and consistent with business necessity” In making such a determination, the employer should consider:
“1. The nature and gravity of the criminal offense;
2. The time that has elapsed since the criminal offense took place; and
The nature of the Employment held or sought.”
The ordinance also specifies that arrests may only be considered if charges are still pending, that expunged and voided judgments may not be considered, and judgments that were dismissed following diversion may only be considered if they involved physical harm or attempted physical harm to a person. If the conditional offer of employment is rescinded, the employer must notify the applicant in writing, and identify the specific conviction or charge upon which it is denying employment.
The Portland city ordinance contains the same exceptions as the Oregon law, so it does not apply where background checks are required by law, to law enforcement or jobs in the criminal justice system, or to volunteers. Portland is contracting with the Bureau of Labor and Employment (BOLI) to enforce the ordinance.
The foregoing post is informational only, and should not be interpreted or construed as legal advice. Employers with questions concerning legal issues should contact Beaverton attorney Brad Schrock at (503) 626-3087.