The City of Portland has jumped to the forefront of the national “ban the box” trend and has adopted a new ordinance that restricts many employers from screening applicants based on their criminal history before making a conditional job offer.
Portland’s ban the box ordinance, which goes into effect on July 1, 2016, will impose restrictions on employers of six or more persons as they consider applicants for any position that will require work within the City of Portland for more than half of the employee’s time. Full-time, part-time, temporary, seasonal, and unpaid employees all are covered by the ordinance. Employers will be barred from making any inquiry about a job applicant’s criminal history prior to making a conditional job offer.
Who is covered?
Employers of six or more persons who are based both inside and outside of the City of Portland are subject to the ordinance. The focus is not on an employer’s location, but rather on where an employee performs work.
The ordinance applies so long as an employer of six or more total persons is considering applicants for a position being performed within Portland at least half of the time. Government employers other than the City of Portland are exempt from the ordinance.
When and how can criminal history be considered?
An employer can only consider criminal history after it extends a conditional job offer. A conditional job offer is one that is conditioned solely on the results of a criminal history inquiry and/or some other contingency that is expressly communicated to the applicant at the time of the offer.
After the conditional job offer has been made, the employer is permitted to consider the applicant’s criminal history, subject to certain requirements and limitations. The employer must make an individualized assessment of the nature and gravity of any criminal offense, the time that has elapsed since the offense, and the nature of the position. Based on that assessment, an employer may rescind a job offer only if it makes a good faith determination that the criminal history is job related for the specific position and that business necessity compels revocation of the offer. An employer may not consider arrests that did not lead to a conviction (unless charges are pending), judicially expunged convictions, or most types of charges that are resolved through a diversion or deferral of judgment program.
How can an employer revoke a job offer?
Once an employer determines that it must revoke a conditional job offer, it must notify the applicant in writing of its decision and identify the relevant criminal history that resulted in the decision.
Are there any exceptions?
Some employers are exempt from the ordinance.
Law enforcement and criminal justice system employers are exempt from the ordinance, as are employers who seek non-employee volunteers and employers who are required by applicable laws to consider criminal history.
Additionally, some employers are permitted to consider criminal history at any point in the application process, but are still governed by the ordinances requirements related to individualized assessment and restrictions related to arrests and non-conviction history that may be considered. These include employers who seek employees for positions involving the provision of services to vulnerable populations (e.g., children, elderly, disabled, mentally ill, and alcohol or drug dependent).
Finally, the ordinance provides for administrative rules that could determine whether an exception is appropriate for specific positions because they present heightened public safety concerns or due to a business necessity. If an employer’s position is so classified, then the employer would be permitted to consider applicants’ criminal histories at any stage.
What about the Oregon “Ban the Box” Law?
Oregon’s statewide “ban the box” law
goes into effect on January 1, 2016. It does not preempt local ordinances, such as the one Portland recently passed.
Under the state law employers may not inquire about an applicant’s criminal history prior to an initial interview. The state law does not impose significant additional restrictions on employers after an applicant passes through that initial screening stage.
What are the penalties for violating the City of Portland ordinance?
The City of Portland may contract with the Oregon Bureau of Labor and Industries (“BOLI”) to enforce the ordinance. Neither the City ordinance nor the state-wide law provide for a private right of action. Therefore, civil penalties generally will be limited to $1,000 per violation. Exposure is relatively small for each individual case. However, if BOLI determines that a company mishandled an entire batch of applications, then it might take the position that each application represents a separate violation punishable by a civil penalty of up to $1,000.
Covered employers should evaluate their existing job descriptions and consider whether the Portland ordinance will pose a hardship on their consideration of applicants for any positions. The Portland City Attorney’s office will draft administrative rules interpreting the ordinance, and employers should consider whether they or their industry groups should lobby for administrative rules that permit consideration of criminal history prior to an initial job offer. To the extent that existing job descriptions categorically exclude persons from employment based on prior criminal convictions, employers must evaluate the basis for such restrictions and whether to update those job descriptions to account for the type of individualized determinations about particular applicants that are required under the City ordinance. Bullard Law will continue to monitor developments related to the drafting of administrative rules and to interface with the City on employers’ concerns related to the ordinance.