October 28th, 2016 | Debbie Lamb, Sterling Talent Solutions
Portland Adopts Strict Ban the Box Rules
Have you heard about “ban the box” laws that are being enacted across the United States? I hadn’t until I started working at SterlingSM. But, now I have been seeing more and more news stories about this type of legislation. These laws prevent companies from asking about a job applicant’s criminal history on an application and during interviews. The laws are made to give applicants a fair chance by focusing on their qualifications and not on possible criminal history. The criminal history questions can be asked later in the hiring process such as after an offer is made to the applicant and can be investigated, with the consent of the applicant, during a background screening check.
State and Local Ban the Box Laws
The city of Portland is the latest in a number of cities across the United States who has issued changes to the rules protecting job applicants. The city issued an administrative rule removing certain barriers for job applications and background checks for individuals with criminal records. Currently, over 150 cities and counties have adopted the ban the box rules. 24 states across the United States have also adopted legislation supporting this policy. The state of Oregon enacted the state-wide law to remove barrier to employment on January 1, 2016. The state law prohibits employers from requiring an applicant to disclose if they have a criminal conviction on the job application, in the interview or to disclose that information prior to a conditional offer of employment. The state law does not prohibit employers from notifying applicants that they will later be required to disclose convictions or that a criminal background check will be performed as part of the hiring process. The law expressly states that it does not foreclose an employer from considering convictions when making hiring decisions. The Portland ordinance puts in place regulations that are stricter and detailed than the state legislation.
Portland’s Ban the Box Law
Portland’s “ban the box” law, which went into effect July, 1, 2016 prohibits criminal history inquires and background checks until a conditional offer of employment has been made. This affects all aspects of the hiring process from the application, interview, offer and background check. The National Law Review reports that if an applicant self discloses criminal history during discussion during an interview, the new administrative rules direct employers to disregard that information and to “take responsible steps to prevent any further disclosures during the process.”
The new ordinance applies to all employers or agents of employers within the city limits of Portland. However, there are certain exceptions to this ruling including:
- Organizations that are less than 6 employees
- Federal, state, county or other local government municipality, public corporation districts and other public districts other than that city of Portland
- If federal, state or local law requires the consideration of an applicant’s criminal history
- If the employer is a law enforcement agency or member of the criminal justice system
- If the employer is seeking a non-employee volunteer
If a criminal record is found in the background screening after an employment offer is made, the employer must decide if the applicant’s criminal history would disqualify the person for the job. An employer cannot consider rescinding an offer after a criminal check based on the following reasons:
- An arrest not leading to a conviction, except where a crime is unresolved or charges are pending
- A conviction which has been judicially voided
- A charge not involving physical harm or attempted physical harm that has been resolved through the completion of a deferral of judgement program
If an offer is rescinded based on an individual’s criminal history, the hiring employer must notify the applicant in writing (or email) and identify the relevant criminal convictions on which the decision is based. The Portland City attorney created a Matrix to assist employers in making sensitive employment decisions related to the ordinance.
The state’s Bureau of Labor and Industries (BOLI) will investigate and enforce this ordinance in addition to Oregon’s similar state legislation. Complaints can be filed up to 180 days after the job refusal with a decision being made at the conclusion of investigating the case.
Compliance and Due Diligence
As more cities, counties and states create their own ban the box laws, what happens at the businesses and HR professional level? Employers have to make sure their hiring procedures are compliant with these new regulations and laws. Any type of labor law judgements need to be taken in consideration forcing organizations to review their employment applications, interview practices and hiring processes to make sure they are compliant to the new laws. Learn how to protect your business from the dangers of not complying with the Ban the Box laws in our new white paper, Is Ban the Box Out of Control?
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.