• Todd Eiseman

Newest Ban the Box Laws in Portland, Oregon

Updated: May 2, 2018

Are you still asking your candidates about their criminal history? If so, staying aware of changes in local law has never been more important. We’ve been keeping a close watch on Ban the Box legislation across the nation, and Portland, Oregon is the most recent – and one of the strictest – jurisdictions to enact this law.

Addressing local employers, Portland’s mayor cites studies that “show that removing job barriers for individuals with criminal records helps the economy.” Thus, companies that operate in Portland are now prohibited from asking about conviction history until a conditional job offer is presented to the applicant, “conditional” in this context meaning that the applicant must pass a background screening.

Portland’s new law is stricter than most; many jurisdictions simply ban the checkbox on the employment application (and similar verbal questions in the application phase) that asks about previous felonies. Portland has gone one step further, prohibiting the question throughout the entire interview process, until the employer officially presents a conditional job offer. Note that there is some body of thought that ordering a background screening is effectively asking about criminal history and, therefore, should be postponed until a conditional job offer has been presented.

The reason for this delay, the mayor says, is that, in the case of adverse action, it “ensures that the applicant was fully considered by the employer for the position based on their qualifications, without the stigma of a record affecting the employer’s assessment.” Furthermore, a criminal history can only adversely affect the hiring decision if it is job-related or if the employer is exempt from the law due to the nature of its business activity.

Exemptions apply to law enforcement and criminal justice organizations, as well as those that care for children, the elderly, people with disabilities, or other vulnerable groups. Also, in Portland, businesses with fewer than six employees are exempt (note: the employee number threshold varies quite a bit between jurisdictions). Written notification of adverse action and identification of the relevant criminal history is required in the case that the job offer is retracted.

The Ban the Box law in Portland, Oregon, became effective on July 1, 2016. Accordingly, employers should reevaluate their employment applications and train hiring managers in best practices. Criminal record background checks should be conducted only after the job offer is presented, and careful assessment of the relevance to the offered position is needed if a criminal history is revealed in the screening.

For more information about Ban the Box legislation feel free to contact us!

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