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The Portland City Council has passed its own version of a “Ban the Box” law, which will require most businesses operating in the city to adjust their hiring practices. Under the strict new rules, covered Portland businesses will be prohibited from asking prospective job applicants about their criminal history until after a conditional job offer has been made. The new law will be effective July 1, 2016.
Oregon passed a more traditional version of a Ban the Box law this past legislative session, barring employers from asking applicants about criminal histories on job applications (the referenced “box” that is banned is the “yes or no” box an applicant must check in response to an inquiry about criminal history). Beginning Jan. 1, 2016, Oregon businesses cannot include such a question during preliminary hiring stages, but they do have permission to ask about an applicant’s criminal history during the interview process.
Under Oregon’s new law, employers who are required by federal, state, or local laws to consider an applicant’s criminal history (e.g., schools, law enforcement, criminal justice, etc.) are still permitted to make such inquiries. But the majority of Oregon employers will need to review their job applications to make sure the offending questions are stricken.
Portland’s law goes one very big step further. Not only will covered businesses be barred from including such questions on their job applications, but such questions cannot be asked at the job interview or at any point before a conditional job offer is made.
Under the new law, employers cannot inquire about or even access an applicant’s criminal history from any other source before making a “conditional offer of employment.” This is defined as being any offer that is conditioned solely on the results of the criminal background inquiry or some other contingency that is expressly communicated to the applicant at the time of the offer.
If, after making the conditional job offer, an employer learns of an applicant’s criminal background, the new law states that an employer can rescind the offer after determining that rejecting the applicant would be job related and consistent with business necessity.
Very small businesses are excluded from coverage, as the new law does not cover businesses with fewer than six employees. However, any workplace with six or more employees is covered so long as they have workers who perform a majority of their time within the City of Portland (including full-time, part-time, temporary, or seasonal workers).
Just as with Oregon’s Ban the Box law, certain businesses are excluded from coverage when hiring certain positions, including those hiring for law enforcement, criminal justice, and positions working with children, the elderly, people with disabilities, and other groups considered vulnerable.
The ordinance states that Oregon’s Bureau of Labor and Industries (BOLI) will work with the city of Portland to enforce the new law; stay tuned for fine-tuning of the enforcing regulations to determine possible punishments for noncompliance.
If there’s any good news, it’s that you have time before Portland’s law goes into effect to adjust your hiring processes to this new reality. The new law will not kick in until July 1, 2016. Here are five steps you should take to make sure you come into compliance:
Richard R. Meneghello is an attorney in the Portland, Ore., office of Fisher & Phillips. Republished with permission. © 2015 Fisher & Phillips. All rights reserved.
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