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:
- No inquiries into criminal history until AFTER a conditional job offer has been made;
- 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.
- 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
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:
- 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;
- Positions which have been determined by administrative rule to present heightened public safety concerns or a business necessity;
- 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
ABOUT US: Employees are your most valuable, and often most expensive, asset. How you handle employment issues can have a significant impact on your bottom line. Our labor and employment attorneys provide creative, strategic legal counsel – targeted to your mission and business environment. We can help ensure the most proficient use of human resources, prevent costly disruptions, and help you identify and address issues before they become costly claims or lawsuits.
We specialize in providing labor and employment advice, counseling, and litigation services to public and private employers.
Nothing in this communication creates or is intended to create an attorney-client relationship with you, constitutes the provision of legal advice, or creates any legal duty to you. If you are seeking legal advice, you should first contact a member of the Labor and Employment Team with the understanding that any attorney-client relationship would be subsequently established by a specific written agreement with Harrang Long Gary Rudnick P.C. To maintain confidentiality, you should not forward any unsolicited information you deem to be confidential until after an attorney client relationship has been established.
For more information about our Labor & Employment Law team, or to learn more about the firm in general, please click here.
« Back to News & Insights