By Benjamin P. O'Glasser
we wrote about Portland’s “Ban the Box
” ordinance. This month the City Council approved administrative rules that will guide enforcement when the ordinance goes into effect on July 1, 2016. The ordinance and rules generally apply to employers of six or more persons and to positions that will require work within Portland for more than half of the employee’s time.
In general, unless an exception applies, an employer violates the ordinance if it “gathers, obtains, or uses an Applicant’s Criminal History before making a Conditional Offer of Employment.” A Conditional Offer of Employment (“COE”) is an offer to employ that is conditioned on the results of an inquiry into an applicant’s criminal history or any other expressly communicated contingency. Thus, employers must communicate all at once any conditions attached to a COE.
Prior to a COE, an employer cannot gather or otherwise obtain any criminal history information and must disregard any criminal history information that an applicant self-discloses. Inquiries about unexplained gaps in employment may now be considered impermissible “fishing” for criminal history information.
When considering criminal history information, employers are required to make an “individualized assessment.” Such an 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. The rules do not offer further clarification or guidance on the mechanics of an employer’s assessment.
At the federal level, the EEOC uses and has interpreted language that is mirrored in the City ordinance and rules. Yesterday, the City confirmed that it sourced the individualized assessment language from EEOC guidance, but it has declined to expressly confirm or reject whether that guidance will in fact serve as precedent when the ordinance is enforced. Under those guidelines, employers cannot automatically disqualify an applicant simply because of a prior conviction. Employers are directed to evaluate whether a particular conviction actually raises current concerns for the position. Employers are expected to differentiate between felony and misdemeanor convictions, remote and recent convictions, and positions for which the essential functions do or do not justify exclusion based on business necessity. For example, a decades-old conviction for misdemeanor drug possession likely would not be relevant for a position as a bartender. In contrast, a recent conviction for motor vehicle theft still may be relevant for a sales position at a car dealership.
Some employers are permitted to consider criminal history at any stage of the application process for sensitive positions. Sensitive positions include those involving providing services or having access to minors, the elderly, persons with disabilities, the mentally ill, or persons with substance-abuse disorders. Additionally, employees with certain duties (e.g., driving and access to certain locations or information) are categorized as sensitive positions. For some sensitive positions, employers are relieved from the “individualized assessment” requirement and can use a criminal history matrix and conviction list to exclude certain applicants from consideration outright. (Note
: Even if an exception to the Portland ordinance applies, employers must still be attentive to Oregon’s statewide “Ban the Box” statute, which generally prohibits criminal history inquiries prior to the initial interview.)
If an employer extends and rescinds a COE, the employer must notify the applicant in writing of the reason for rescission and the source of the criminal history information. If an applicant believes that their COE was rescinded in violation of the ordinance, the applicant can complain to BOLI, with which the City has contracted to provide training and enforcement services. A complaint to BOLI may be made within 180 days after the delivery of a notice that an employer has rescinded a COE. While there is no private right of action under this ordinance, BOLI’s enforcement powers mirror those available under state law (ORS Chapter 659A). In addition, the ordinance permits a fine of up to $5,000 per violation for employers who engage in a pattern and practice of violations.
Portland employers should evaluate their existing job descriptions and consider the impacts of the ordinance on their hiring. At a minimum, employers must thoroughly evaluate the job duties of the position prior to any posting to identify the essential functions of the position and to determine whether the job is a “sensitive position” under the ordinance.
Please contact us if you would like Bullard Law to analyze the impact of the ordinance on your organization.