Portland Issues Rules Implementing 'Ban the Box'

By Sarah J. Ryan, Susan M. Corcoran, Richard I. Greenberg and April Upchurch Fredrickson © Jackson Lewis Oct 12, 2016

The city of Portland, Ore., has issued administrative rules to the "Removing Barriers to Employment," its ordinance aimed at removing job barriers for individuals with criminal records (Chapter 23.10 of the Portland Municipal Code).

The ordinance, which took effect on July 1, prohibits criminal history inquiries and background checks until a conditional offer of employment has been made.

If an applicant self-discloses criminal history during an interview, the administrative rules direct employers to disregard the information and to take reasonable steps to prevent any further disclosures during the process.

Oregon law restricting employers from inquiring about a job applicant's criminal background during the initial stages of the application process (i.e., before a job interview) went into effect on Jan. 1.

Coverage

The ordinance applies to all employers who "directly or through an agent employs another for a position being performed a majority of the time within the City of Portland."

Certain employers are excluded from coverage. These include employers with fewer than six employees, and federal, state, county, and other local governments, municipalities, public corporations, authorities, districts, and other public districts, except for the City of Portland.

In addition, the Portland ordinance does not apply:

  • If federal, state, or local law requires the consideration of an applicant's criminal history.
  • To an employer that is a law enforcement agency.
  • To an employer in the criminal justice system.
  • To an employer seeking a nonemployee volunteer.

While the administrative rules expressly exclude "volunteers" (as compared to interns), employers need to be mindful that there still may be certain legal requirements that apply to this group.

Other Requirements

After a conditional offer of employment, in considering whether an applicant's criminal history is job-related for the position in question and consistent with business necessity, the administrative rules "codify" that an employer must in good faith assess the nature and gravity of the criminal offense, the time that has elapsed since the criminal offense took place, and the nature of the employment held or sought before rescinding a conditional offer of employment.

An employer is precluded from considering or rescinding a conditional offer based on any of the following:

  • An arrest not leading to a conviction, except where a crime is unresolved or charges are pending.
  • A conviction that have been judicially voided or expunged.
  • A charge not involving physical harm or attempted physical harm that has been resolved through the completion of a diversion or deferral of judgement program.

If a conditional offer of employment is rescinded based on an individual's criminal history, the employer must notify the applicant in writing and must identify the relevant criminal convictions on which the decision is based.

The "in writing" requirement can be satisfied in paper form or electronically. The Portland City Attorney's Office has provided a sample.

Criminal History Matrix

The Portland City Attorney's Office also has created a Criminal History Matrix to assist employers in making sensitive employment decisions related to the ordinance. The matrix lists:

Positions involving direct access to or the provision of services to children, the elderly, persons with disabilities, persons with a mental illness, or individuals with alcohol or drug dependence or substance abuse disorders.

Positions determined by administrative rule to present heightened public safety concerns or a business necessity.

Positions designated by the employer as part of a federal, state, or local government program designed to encourage the employment of those with criminal histories.

Employers who use the matrix still must comply with all other requirements of the ordinance, including conducting an individualized assessment for any convictions not contained on the matrix.

Enforcement

The Bureau of Labor and Industries (BOLI) will investigate and enforce the ordinance, in addition to the state legislation.

An aggrieved individual has 180 days to file a complaint with BOLI. Upon conclusion of the investigation, BOLI will issue a formal notice of Substantial Evidence Determination or dismiss the case if no violation is found.

In addition, the Portland City Attorney, City Commissioner or Oregon's Attorney General have authority to file a complaint with BOLI if there is reason to believe that an employer has violated the ordinance or the administrative rules.

If a complaint is brought against an employer who has demonstrated a pattern and practice of violating the ordinance or the administrative rules, the BOLI Commissioner may assess a civil penalty of up to $5,000 for each violation. The Ordinance, however, does not provide a private right of action. All complaints must be filed with BOLI.

To ensure compliance with the ordinance, covered employers are encouraged to review their employment applications and hiring practices.

All personnel responsible for recruiting, interviewing, or hiring should be notified of the new law and its requirements and should receive appropriate training. In addition, any written policies or procedures should reflect the requirements of the ordinance.

Sarah J. Ryan and April Upchurch Fredrickson are attorneys with Jackson Lewis in Portland, Ore. Richard I. Greenberg is with the firm's New York City office, and Susan M. Corcoran is with its White Plains, N.Y. office. © Jackson Lewis. All rights reserved. Reposted with permission.

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