The City of Portland’s “Ban-the-Box” Plus Legislation

Beginning January 1, 2016, Oregon’s “Ban-the-Box” legislation prohibited Oregon employers from asking about criminal history prior to conducting an interview, or absent an interview, prior to making a job offer (unless one of the statutory exceptions applies). Effective July 1, 2016, Portland employers will be subject to even more stringent requirements.

The basics for Portland employers:

  1. No inquiries into criminal history until AFTER a conditional job offer has been made;
  2. AFTER a conditional job offer has been made, employers must perform an “individualized assessment” of any criminal history, evaluating:a. The nature and gravity of the criminal offense;b. The time that has elapsed since the criminal offense took place; andc. The nature of the employment held or sought.

Covered employers may never consider:

  • An arrest not leading to a conviction (however an employer may consider a pending arrest);
  • Convictions that have been judicially voided or expunged; or
  • Charges that did not involve physical harm or attempted physical harm to another, where the charges have been resolved through the completion of a diversion or deferral of judgment program.

The ordinance applies to companies or organizations with six or more employees, so long as at least one employee spends a majority of his/her working time within the city limits.

Exceptions:

  • Jobs for which federal, state, or local law or regulations require the consideration of an applicant’s criminal history;
  • Jobs in law enforcement;
  • Jobs in the criminal justice system; or
  • Volunteers.

Also, the ordinance states that an employer may “consider an applicant’s criminal history at any point in the hiring process,” using the City’s “City Criminal History Matrix” (to be provided by administrative rule at some future date) for the following:

  1. Positions involving direct access to or the provision of services to children, the elderly, persons with disabilities, persons with a mental illness, or individuals with alcohol or drug dependence or substance abuse disorders;
  2. Positions which have been determined by administrative rule to present heightened public safety concerns or a business necessity;
  3. Positions designated by the Employer as part of a federal, state, or local government program designed to encourage the employment of those with criminal histories.

Because the ordinance will be fleshed out by administrative rule, and because it appears the administrative rules could include additional specific exceptions, all covered employers are encouraged to get involved in the public comment period. If you believe consideration of criminal history prior to making a job offer is critical to your recruitment, let the Portland City Attorney know the specifics of your business or organization, and the effect you envision from the application of the ordinance. Contact the Portland City Attorney’s office for more information: 503.823.4047

As always, there is more to this than a brief update, so please check with with a lawyer and/or check out the City of Portland’s website if you have any questions! www.portlandoregon.gov


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