Employers with six or more employees who spend at least 50% of their time working in Portland will not be allowed to ask about a job applicant’s criminal history on an employment application effective July 1, 2016. Based on a Portland City Ordinance, this “ban the box” law generally prohibits an employer from asking about an applicant’s criminal history before making a conditional offer of employment (“COE”). A COE is an offer of employment that is expressly conditioned on the results of an inquiry into an applicant’s criminal history or any other specifically communicated contingency. Consequently, a covered employer cannot gather or obtain any criminal history about an applicant, and must disregard self-disclosed criminal history prior to making a COE.
Even after obtaining an applicant’s criminal history following a COE, the employer must still make an “individualized assessment” of the crime before ruling out an applicant based on criminal history. Like to the assessment required under existing federal Equal Employment Opportunity Commission regulations, such individualized assessment must include consideration of the “nature and gravity” of the offense or conduct, whether the offense or conduct was recent, and the nature of the position for which the applicant has applied. In general, the required assessment means that employers must evaluate whether a particular conviction actually raises current concerns in relation to the position at issue, including evaluating felony versus misdemeanor convictions, more recent convictions versus older convictions, and whether essential functions of the position justify a ban on employment based on business necessity.
If an employer rescinds a COE, the employer must notify the applicant in writing of the reason for rescinding the offer and the source of the criminal history information. If an applicant believes that the COE was rescinded in violation of the ordinance, the applicant can complain to the Oregon Bureau of Labor and Industries - BOLI (with which the City has contracted to provide training and enforcement services.)
The Ordinance provides limited exemptions for certain “sensitive” positions which include jobs involving providing services or having access to minors, the elderly, persons with disabilities, the mentally ill, or persons with substance-abuse disorders. In addition, employees with certain duties such as driving and access to certain locations or information are considered to be in sensitive positions. If a position is considered “sensitive,” the employer generally can use a criminal history matrix and conviction list to outright exclude the applicant from consideration without going through the individualized assessment.
Covered employers are reminded that even if an exception to the ordinance applies, they must still comply with Oregon’s statewide “Ban the Box” statute (effective January 1, 2016), which generally prohibits criminal history inquiries prior to the initial interview.
Portland area employers are advised to immediately review their employment application to ensure questions concerning criminal history have been removed. Additionally, all job descriptions should be carefully reviewed to make an accurate determination as to the essential functions of each position to establish whether any job is a “sensitive position” under the Portland ordinance.
Anne Denecke is available to answer questions regarding the Portland and Oregon ban the box prohibitions at 503-226-3515.