Portland passes new “ban the box” ordinance

Evenson, Andrew_167x222Last month, the Portland City Council unanimously approved a more stringent “ban the box” ordinance than its State counterpart. The Portland ordinance is designed to provide job applicants with criminal histories a better opportunity at employment by protecting them from having to discuss or disclose their criminal background during the interview process. Notably, it disallows employers from inquiring into or accessing an applicant’s criminal background prior to making a conditional offer of employment. The State law, which passed under House Bill 3025 during the 2015 legislative session and goes into effect on January 1, allows employers to ask about an applicant’s criminal history during the interview phase. The city ordinance still permits Portland employers to condition a job offer on a background check and to rescind the offer if they determine that a specific offense or conduct has a direct relationship to the individual’s ability to perform the duties or responsibilities of the employment. It disallows employers from considering arrests that did not lead to a conviction (unless charges are pending), voided or expunged criminal convictions, or charges not involving physical harm or attempted physical harm that have been resolved through the completion of a diversion or deferral of judgment program. The new ordinance will not apply to Portland businesses with less than six employees, and exemptions apply to jobs in law enforcement and criminal justice, volunteer positions, and to jobs that require work with children, the elderly, people with disabilities, or other vulnerable groups.

As an employer, what does this mean for you? At its most basic, you cannot include any questions or inquiries on your application related to an applicant’s criminal background. Additionally, you can neither ask about criminal history during the interview process nor run a background check until after you have made a conditional offer of employment. Once you have made a conditional offer, you are then able to inquire into and consider the applicant’s criminal background. The ordinance specifically allows you to consider “the relevance of an applicant’s criminal background in relation to the job” and “requires that you assess the nature and gravity of the criminal offense, the time that has elapsed since the criminal offense took place, and the nature of the employment held or sought.” Only after making these considerations may you rescind the conditional offer of employment. If you choose to rescind the offer, you are required to notify the applicant in writing and identify the relevant convictions on which the rescission was based.

Many lawmakers considered Oregon HB 3025 a watered-down version of the bill proposed by labor activists and a compromise that did not overly-burden Oregon businesses. Portland’s “ban the box” ordinance shifts some control away from employers compared to the State version. The new Portland ordinance and its administrative rules, which were initially proposed by Mayor Charlie Hales in March 2015, become effective on July 1, 2016. The city will contract with the Bureau of Labor and Industries to enforce the ordinance. A release from the Office of Mayor Charlie Hales can be found HERE.

If you have additional questions related to the new ordinance and how it might affect your business, please contact me at aevenson@sbhlegal.com