On November 25, 2015, in a 5-0 vote, the City of Portland passed a ban the box ordinance that is more restrictive than the new ban the box law recently passed by the Oregon legislature. The Oregon state bill restricts an employer from asking about an applicant’s criminal history on a job application, but allows employers to inquire about an applicant’s criminal history in the initial interview. The City of Portland’s ordinance is more restrictive. Employers within the city limits who perform background checks should take heed. Here are the particulars of the Portland ordinance:

When does the Ordinance take effect: The Ordinance and its administrative rules are scheduled to go into effect on July 1, 2016. The City Attorney for the City of Portland will draft the administrative rules and the public will have an opportunity to provide written and oral testimony with respect to the administrative rules.

Who does it apply to? ThePortland ordinance applies to all employers within the Portland city limits who have six or more employees. The U.S. government and the State of Oregon are excluded from the definition of an employer.

Are there exceptions? Yes, the ordinance does not apply where a federal, state or local law or regulation requires or authorizes the consideration of a person’s criminal history, including but not limited to:

  • Law enforcement employment in the criminal justice system;
  • Private security employment where a license is required by the state of Oregon;
  • Employees who have direct access to or provide services for children, the elderly, persons with disabilities, persons with mental illness, or individuals with alcohol or drug dependence or substance abuse disorders;
  • Employees who are required to be licensed, registered, or certified by the State of Oregon.

What does it do? The ordinance codifies aspects of the Equal Employment Opportunity Commission’s (EEOC) guidance on performing background checks that was released in 2013.

  • First, it limits the ability of an employer to access or make inquiries into an applicant’s criminal history until after making a “Conditional Offer of Employment.”
  • Second, if an employer decides to rescind the Conditional Offer of Employment based upon the applicant’s criminal history, an employer must “determine that a specific offense or conduct has a direct relationship to a person’s ability to perform the duties or responsibilities of the employment.” This means that there must be some connection between the employee’s job duties and the conviction.
    • For example, an applicant with a conviction of theft, fraud, embezzlement, or the like and whose job duties include working with finances, sensitive information, or cash would have a direct connection. Similarly, an applicant who must work in close contact with other employees, or the public, but who has a conviction related to a violent offense would also have a connection that might justify a rescission of the job offer.
    • In order to determine whether there is a connection between the job duties and the conviction, an employer must conduct an “individualized assessment” that includes the following inquiries:
      • The nature and gravity of the offense;
      • The time that has elapsed since the offense took place; and
      • The nature of the employment held or sought.
    • In addition, the Portland ordinance specifically indicates that an employer may not consider the following:
      • An arrest not leading to a conviction, except where the crime is unresolved or where charges are
      • Convictions that have been judicially voided or expunged; or
      • Charges that have been resolved through the completion of a diversion or deferral of judgment program.
  • Third, if an employer determines that there is a relationship between the job duties and the conviction, then the employer must provide a “Written Notice of Adverse Employment” decision, similar to what is required by the Fair Credit Reporting Act, and must provide information about the criminal history report, and provide the employee with an ability to request a reconsideration of the decision in the form of an “individualized assessment,” which reviews a variety of specific factors to determine whether the employee has been rehabilitated.

Who is responsible for enforcement? Portland will contract with the state Bureau of Labor and Industries (BOLI) to enforce the Ordinance.

If you have any additional questions regarding this ordinance, the attorneys in Schwabe, Williamson and Wyatt’s employment group are ready to assist.

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